text:
    UNITED STATES of America v. James E. JACKSON, Appellant.
    No. 72-1777.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 10, 1973.
    Decided Dec. 12, 1974.

      Helen W. Nies, Arlington, Va. (appointed by this Court), for appellant.
    William D. Pease, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, and William S. Block, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellant was convicted by a jury of armed robbery and assault on the robbery victim with a dangerous weapon. This appeal focuses upon the victim’s pretrial and in-trial identifications of appellant, and evidentiary emanations assertedly indicative of his involvement in other criminality. We vacate the conviction on the assault count and affirm on the robbery count.

I. THE FACTUAL BACKGROUND

Late one night, Alfreda Lillian Butler entered her apartment building and noticed two men in the basement. As she walked toward her apartment on the second floor, the men approached from the rear. They followed her into the apartment and announced that their purpose was a holdup. One stood in front of Ms. Butler holding a sawed-off shotgun while the other stayed behind her. She was told to empty her purse on the living room floor, which she did. The man with the shotgun cursorily checked two other rooms in the apartment and subsequently took Ms. Butler into her bedroom, while the second man searched more thoroughly. When the search ended they left taking among other things, a stereo set.

Fifteen to twenty minutes elapsed from the men’s entry to their departure. During that period, Ms. Butler was face to face with the gunman on several occasions. Lights were on over the front door, in the living room and in a bedroom in which her son was asleep, although her own bedroom may have been unlighted. Ms. Butler could not observe the second man sufficiently to enable a later identification.

Ms. Butler gave the police a description of her armed assailant. A few weeks later, Officer Joseph T. Kaclik received word from an informant that appellant was a participant in the robbery. From that point onward, the investigation implicated appellant more and more. Officer Kaclik selected black-and-white photographs of eight persons, including appellant, of the same age group and general description, and presented them to Ms. Butler, who immediately and positively identified appellant as the man who held the shotgun during the robbery. A search warrant executed at appellant’s apartment netted a sawed-off single-barreled shotgun. Ms. Butler identified a stereo set recovered by the police as the one taken from her apartment during the robbery. From an eleven-man lineup at police headquarters, Ms. Butler again made a positive identification of appellant. These and other events culminated in an indictment.

Shortly prior to trial, appellant moved to suppress the photographic and lineup identifications, and any in-trial identification to be undertaken. After an evidentiary hearing, the judge denied the motion. At trial, Ms. Butler described the robbery, identified her stereo set, and said that the shotgun found in appellant’s apartment was similar to the one used in the robbery. Ms. Butler also testified to her previous photographic and lineup identifications of appellant, and once again identified him in the courtroom. Officer Kaclik confirmed her pretrial identifications of appellant and the stereo set.

A key witness for the Government was Roland Carey, appellant’s roommate, whose testimony we may profitably pause to summarize. On the night of the robbery, appellant, Wendell Hiett and Carey talked in appellant’s apartment about a “hustle” — a robbery. Carey spurned the plan, so appellant and Hiett left to execute it on their own. Appellant took along the sawed-off shotgun, which he kept in the apartment.

Hiett, carrying Ms. Butler’s stereo set, returned to appellant’s apartment later, but Carey refused to let him come in. Hiett then went to his own apartment, located in an adjacent building. Still later, Carey saw appellant run into Hiett’s apartment house. Carey joined them, and both appellant and Hiett told him about the robbery of Ms. Butler.

Appellant’s defense was alibi and mistaken identity. He and two witnesses testified that they were playing and watching television in the witnesses’ apartment when the robbery was in progress. Appellant also testified that the shotgun did not belong to him but to Carey. The jury persuaded instead by the Government’s evidence, convicted.

II. THE PHOTOGRAPHIC IDENTIFICATION

The challenge to Ms. Butler’s photographic identification of appellant is predicated upon three distinct grounds, the first of which may at once be discarded. That ground is that, because appellant was already in custody on another charge, the police could not, in the absence of counsel on his behalf, utilize a photographic identification to link him to the robbery. The Supreme Court’s recent holding in United States v. Ash, that no Sixth Amendment right to counsel attaches at photo-identification sessions, plainly forecloses acceptance of that argument.

A second ground urged is that, with appellant in custody and assertedly available for a corporeal lineup, a photo-identification procedure in lieu of the normally more reliable lineup procedure was constitutionally impermissible because unnecessary. We are unable to characterize the resort to photographs as a gratuitous undertaking here. Photo-identification is an established investigative technique which the Supreme Court has refused to outlaw and which, as Ash and other decisions demonstrate, may properly serve law enforcement needs other than apprehension of criminals at large. Ms. Butler’s examination of the photographs was designed to test unverified information from a paid informant that appellant was one of her assailants. We are less confident than appellant that his presence in a robbery lineup was then compellable, but in any event we perceive no impediment to an effort to fortify the basis for moving in that direction. There is neither claim nor evidence that the methodology of the photographic display in question was in any way suggestive.

Appellant’s remaining ground is that testimonial reference to the photographic identification unfairly embarrassed his ability to persuade the jury that Ms. Butler had misidentified him. The argument is that appellant could best defend against the identification by exhibition of the photographs to the jury for its appraisal of the accuracy of the identification, a course fraught with danger because the photographs were, in the vernacular, mug shots. In support of this argument, appellant relies on our holding in Barnes v. United States that since an accused’s mug shots intimate a prior criminal record, the Government may not ordinarily present them for the jury’s inspection.

We think appellant presses Barnes much too far. The photographs themselves were not placed in evidence, nor were they ever referred to in the jury’s presence as mug shots; the question is whether the identification they promoted was outlawed simply by their character. We have consistently honored the Government’s prerogative to show testimonially pretrial photographic identifications, which may well be “more meaningful to the jury than the more ritualized in-court identification.” Our decisions make clear that that prerogative extends to testimony of identifications based on photographs not typically mug shots, and we see no sound reason for concluding differently when a mug shot is utilized, for the accused need not face the Hobson’s choice appellant imagines. The problem to which appellant points may be avoided simply by eliminating the objectionable features of the mug shots, a course trial courts, in exercise of their powers to safeguard the fairness of trials, may insist upon. At appellant’s trial, the District Court’s discretion to that end was never invoked, if indeed appellant wished to test the identification against the photograph. We cannot find just cause for the present complaint.

III. THE LINEUP IDENTIFICATION

Appellant next complains of the lineup at which, following the photographic presentation, he was again identified by Ms. Butler before trial. The contention is that the lineup was impermissibly suggestive because he was the only one in the lineup with a bush hairstyle. The initial inquiry here is whether the lineup “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” If suggestive but not unconstitutionally so, the further inquiry is “whether under ‘the totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Our answers to both questions are in the negative.

Shortly after the robbery, Ms. Butler described the armed robber as “a Negro male, late 20’s, five-foot-ten stocky build, medium complexion, bush haircut dark clothing.” In the challenged lineup were eleven black males who, though generally of similar appearance, nonetheless presented the viewer with some range of variation. Between the shortest and the tallest was a difference of about eight inches; eight in the line-up, including appellant, were within approximately four inches of equal height. None was unusually slender or abnormally stout, but there were differences in build. None seemed particularly young or particularly old, but it was manifest that they were not all of the same age. None had a distinctly heavy beard, but some had facial hair and some did not, and haircuts diverged considerably. In this context, we think it clear, as the trial judge concluded, that appellant’s bush hairstyle was not “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to amount to a constitutional violation.

Moreover, even assuming arguendo that the hairstyle was in some degree suggestive, we cannot believe that it so distinctively marked him as to generate a substantial likelihood of misidentification. In Neil v. Biggers, the Supreme Court instructed that

the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Ms. Butler observed the robber bearing the shotgun over a period of fifteen or twenty minutes, throughout which she was in close proximity to the gunman— sometimes face-to-face. During a good part of the time the lighting conditions were good, and Ms. Butler had good reason to remember her assailant. After her ordeal was. over, she was able to give the police a reasonably accurate description of .the gunman, and her successive identifications of appellant were consistent and invariably emphatic. In “the totality of the circumstances” we discern no ground for doubting the reliability of the lineup identifications. We accordingly sustain the trial judge’s conclusion that the lineup was constitutionally fair, and his action in admitting testimony of the lineup identification at trial.

IV. THE IN-TRIAL IDENTIFICATION

Our holdings that Ms. Butler’s photographic and lineup identifications pass constitutional muster mean necessarily that her in-trial identification was free from any vitiating taint of illegality. It does not mean, however, that inquiry into her capacity to undertake a courtroom identification is at an end. Appellant argues that inconsistencies in Ms. Butler’s trial testimony demonstrate that her in-trial identification was the product of the pretrial identification sessions rather than of observations at the time of the robbery, and as such was improperly allowed. In considering this contention, we deal not with a constitutional infirmity, but rather with the competence of the witness.

To be sure, an identification of one as the perpetrator of a crime may rest only upon impressions gained from the singling out of the criminal — can be accomplished from no other source. Post-offense identification confrontations, photographic or corporeal, may provide corroboration for an identification, but they may not serve as its foundation. It does not follow, however, that inconsistencies in an identification witness’ trial testimony necessarily reflect a disqualifying inability to independently recognize the offender. Untrustworthiness of a proffered identification, and of course its inadmissibility, depend upon how impaired or lacking the ability to do so may be.

The problem of witness-competence is accentuated in cases wherein the guilt of the accused is sought to be rested on an uncorroborated identification by a single witness. For situations of that sort, we have advised caution by the trial judge in retaining the case for the jury’s decision on guilt. The test for sufficiency of the identification as the foundation for a verdict of guilty, we said, is whether the circumstances affecting it give rise to a substantial likelihood of mistaken identification. In the case at bar, Ms. Butler’s identification of appellant was extensively confirmed by other evidence; surely her competence as an identification witness was not to be judged by a more exacting standard. And applying essentially the same test in another context, we have detected no appreciable likelihood of error in her attempt at identifying appellant.

Short of that risk, the credibility of Ms. Butler’s identification was a matter for the jury. In sum, the relatively minor inconsistencies in her testimony at trial did not call for intervention by the judge. The jury, fully aware of those inconsistencies and deliberating under unchallenged instructions by the judge, accepted the identification. In the circumstances, it was its prerogative to do so.

V. THE OTHER-CRIMES REFERENCES

Lastly, appellant asserts that he was victimized by three separate trial occurrences which indicated to the jury that he had engaged in other criminality. He argues that the disclosure of the photographic identification, actually based on mug shots, suggested to the jury his prior involvement with law enforcement authorities. The record makes plain, however, that at no time during trial were the mug shots referred to as anything but ordinary photographs, and that they were never' introduced into evidence or shown to the jury. We are unwilling to speculate that somehow the jury may have recognized them for what they were.

Appellant next argues that the testimony that a search warrant was executed at his apartment implicated him in another crime. The argument fails because there was nothing to indicate that the warrant was issued for any offenses other than those for which appellant was on trial. The questioned testimony was simply that an officer went to the apartment to execute the warrant, found appellant there, and recovered the shotgun later identified as the weapon used during the robbery.

Appellant’s final complaint relates to a statement by Carey, on cross-examination by appellant’s trial counsel, that appellant had been arrested on another charge. When that came out, the trial judge, at defense counsel’s request,' instructed the jury to disregard the statement and denied counsel’s motion for a mistrial. Surely the statement cannot be charged to the Government, and in our view it did not warrant a retrial of the case. The evidence of appellant’s guilt was strong, and the judge’s admonitory instruction to the jury was swift. Whatever any uncured residium of the statement may have been, we are unpersuaded that it could have substantially swayed the verdict.

The judgment of conviction of assault with a dangerous weapon is vacated. The conviction of armed robbery is affirmed.

So ordered.

      . D.C.Code §§ 22-2901, 22-3202(a) (1973).

      . D.C.Code § 22-502 (1973).

      . An assault with a dangerous weapon on the victim of an armed robbery is a lesser offense included within the robbery offense, and does not support a separate conviction. United States v. Johnson, 155 U.S.App.D.C. 28, 29, 475 F,2d 1297, 1298 (1973). See also United States v. Benn, 155 U.S.App.D.C. 180, 185, 476 F.2d 1127, 1132 (1973); United States v. Wimbush, 154 U.S.App.D.C. 236, 475 F.2d 347 (1973).

      . At appellant’s trial, Ms. Butler said the light in this room was on. At the prior hearing of a motion to suppress, she had said that the light was off.

      . The second robber, it later developed, was Wendell Hiett. See text infra at notes 19-21.

      . See note 44, infra, and accompanying text.

      . The informant was Roland Carey, who was to play a prominent role at appellant’s trial. See text infra at notes 19-21.

      . Officer Kaclik was later to be questioned on the claim that he selected photographs of subjects similar in complexion. That was of some importance, for Ms. Butler rejected five of the eight photographs because of the complexions of the subjects. Officer Kaclik stated that complexion is hard to reproduce accurately on black-and-white photographs since shadings depend on the exposure. The officer added that he explained the problem to Ms. Butler only after she had made her positive identification of appellant.

      . The evidence is uncontradicted that neither the photographic display nor Officer Kaclik in any way influenced Ms. Butler in her selection of appellant’s picture.

      . See note 16, infra, and accompanying text.

      . The stereo set had been taken to the apartment of Wendell Hiett, appellant’s confederate in the robbery. See text infra at note 20. Hiett later reported to the police the theft of the stereo set from his apartment. See note 20, infra.

      . At the time, appellant was in custody on a charge of possessing a shotgun found in his apartment. See text supra at note 10. A photograph of the lineup was introduced by the Government at trial, and it appears as a part of the record on appeal.

      . Ms. Butler, asked on cross-examination whether she had identified appellant “by virtue of that previous photographic identification,” replied that she “identified him because he was the man with the gun.” Ms. Butler also stated that appellant’s hair was longer at the lineup than it had been at the time of the offense.

      . See text infra at notes 19-21.

      . In ruling on the motion to suppress, the judge stated:
      The court finds that the photographic identification and the line-up were both conducted in a proper manner and were not so unnecessarily suggestive as to be conducive to an irreparable mistaken identification. Therefore, the defendant was not denied due process of law. The court further finds that, even if the situation were otherwise, so far as the in-court identification is concerned, the complaining witness had ample opportunity to observe the defendant and to have an independent source for an in-court identification of the defendant. 'il

      . As we have said, the shotgun seized by the police had but one barrel. See text supra at note 10. Ms. Butler had reported to the police that the shotgun used in the robbery appeared to her to be double-barreled.

      . Ms. Butler did not remember anyone present at the photo-identification session other than Officer Kaclik and herself. Officer Kaclik, however, recalled that a fellow officer was also present.

      . During the course of Ms. Butler’s testimony the Government introduced its photograph of the lineup, see note 12, supra, and she again pointed to appellant in the photograph as the person she had identified at the lineup, stating that she had no doubt that he was the man with the gun.

      . On cross-examination Carey admitted convictions of two robberies and acknowledged that he faced “18 years in the penitentiary.” He also admitted that he was a paid police informant, and that it was he who first gave the police information concerning the robbery of Ms. Butler.

      . Officer Melvin L. Humphrey testified that he subsequently investigated a burglary of the apartment occupied by Hiett, who reported among the items missing the stereo set later identified by Ms. Butler as the one taken from her during the robbery.

      . The Government also presented two other witnesses. Their testimony is not pertinent to this appeal.

      . One of appellant’s corroborating witnesses based her recollection of- that night’s events on a calendar of dates she customarily kept. The calendar was not produced at trial, however, because allegedly it had been lost in a fire.

      . See note 12, supra.

      . 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

      . See United States v. Perry, 164 U.S.App. D.C. 111, 113, 504 F.2d 180, 182 (1974) (statement of Judge McGowan); United States v. Allen, 133 U.S.App.D.C. 84, 85-87, 408 F.2d 1287, 1288-1290 (1969); Adams v. United States, 130 U.S.App.D.C. 203, 207-208, 399 F.2d 574, 579-580 (1968), cert. denied, Roots v. United States, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1969).

      . See N. Sobel, Eye-Witness Identification: Legal and Practical Problems 79 (1972); P. Wall, Eye-Witness Identification in Criminal Cases 70 (1965).

      . The constitutional violation claimed is a deprivation of Fifth Amendment due process of law. See Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . We note in passing that the Supreme Court has left open the question whether, in identification confrontations after Stovall v. Denno, supra note 27, use of a less reliable identification procedure instead of a more reliable one available alone requires exclusion of evidence of an ensuing identification. Neil v. Biggers, 409 U.S. 188, 198 — 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

      . Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

      . See United States v. Collins, 416 F.2d 696, 699-700 (4th Cir. 1969), cert. denied, 396 U.S. 1025, 90 S.Ct. 601, 24 L.Ed.2d 519 (1970); United States v. Broadway, 477 F.2d 991, 995-996 (5th Cir. 1971); United States v. Williams, 436 F.2d 1166, 1168-1169 (9th Cir. 1970). That position is implicit in the many cases holding that an accused in custody is not constitutionally entitled to representation by counsel at a photo-identification session. See the listing in United States v. Ash, supra note 24, 413 U.S. at 301-302 n. 2, 93 S.Ct. 2568.

      . See United States v. Perry, supra note 25 (statement of Judge McGowan), and cases cited therein.

      . Rather, the claim is that an identification by photograph was in and of itself invalid.

      . 124 U.S.App.D.C. 318, 365 F.2d 509 (1966).

      . The mug shots to which we speak consist in side-by-side full face and profile photographs, with prison numbers on the bottom half and frequently with other markings. See id. at 319, 365 F.2d at 510.

      . Despite our prior decision in Barnes v. United States, supra note 33, the Government did ask that the photographs be let into evidence, but subsequently withdrew the request.

      . United States v. Hallman, 142 U.S.App.D.C. 93, 94-95, 439 F.2d 603, 604-605 (1971). See also United States v. Clemons, 144 U.S. App.D.C. 235, 237, 445 F.2d 711, 713 (1971); Clemons v. United States, 133 U.S.App.D.C. 27, 40, 408 F.2d 1230, 1243 (en banc 1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

      . United States v. Jones, 155 U.S.App.D.C. 328, 334-336, 477 F.2d 1213, 1219-1221 (1973); United States v. Clemons, supra note 36, 144 U.S.App.D.C. at 236-237 and n. 2, 445 F.2d at 712-713 and n. 2; United States v. Hallman, supra note 36, 142 U.S.App.D.C. at 94, 439 F.2d at 604.

      . We have recognized that “[a] juryman might well conjecture that there must have been prior suspicion of the defendant, else why would the police have his photograph,” but we have declined to uphold objection on that account since “we cannot push sound principles to untenable extremes.” United States v. Hallman, supra note 36, 142 U.S. App.D.C. at 94, 439 F.2d at 604. We have instead concluded that “[t]he importance that a jury know of the reality of fair pretrial identification weighs with more substance in the scales of justice that speculative possibility that the jury may conjecture defendant was involved in some other offense.” Id. at 95, 439 F.2d at 605. See also United States v. Jones, supra note 37, 155 U.S.App.D.C. at 335, 477 F.2d at 1218; United States v. Clemons, supra note 36, 144 U.S.App.D.C. at 237, 445 F.2d at 713.

      . Prison numbers may be excised, other markings may be masked or deleted, side-by-side shots may be separated, and photographic copying may be resorted to if necessary. Compare United States v. Jones, supra note 37, 155 U.S.App.D.C. at 334, 477 F.2d at 1219; Vaughan v. State, 215 Ind. 142, 19 N.E.2d 239, 241 (1939); Huerta v. State, 390 S.W.2d 770, 772 (Tex.Cr.App.1965). Cf. Barnes v. United States, supra note 33, 124 U.S.App.D.C. at 321, 365 F.2d at 512. The assistance of the court is available to defense counsel, as is the Government’s assistance on direction by the court as a precondition, in the interest of fairness, to admission of testimony of the photographic identification.

      . See, e.g., Walker v. United States, 124 U.S. App.D.C. 194, 195, 363 F.2d 681, 682 (1966).

      . Stovall v. Denno, supra note 27, 388 U.S. at 302, 87 S.Ct. at 1972. See also Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).

      . See Neil v. Biggers, supra note 28, 409 U.S. at 198-199, 93 S.Ct. 375.

      . Id. at 199, 93 S.Ct. at 382, quoting Stovall v. Denno, supra note 27, 388 U.S. at 302, 87 S.Ct. 1967.

      . This was the description received by the police. The description Ms. Butler recalled furnishing did not vary significantly.

      . See note 15, supra.

      . See text supra at note 41.

      . Neil v. Biggers, supra note 28, 409 U.S. 198, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)
      We are, of course, assisted by the photograph of the lineup, see note 12, supra. Compare United States v. Hines, 147 U.S. App.D.C. 249, 261-262, 455 F.2d 1317, 1329-1330 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). Indeed, Ms. Butler testified that appellant’s hair was longer at the time of the lineup than it was at the time of trial. See note 13, supra.

      . Supra note 28.

      . 409 U.S. at 199-200, 93 S.Ct. at 382.

      . Compare Neil v. Biggers, supra note 28, 409 U.S. at 200, 93 S.Ct. 375, and see note 49, supra.

      . Compare id. at 200-201, 93 S.Ct. 375, and see note 49, supra.

      . Compare Neil v. Biggers, supra note 28, 409 U.S. at 200, 93 S.Ct. 375, and see note 49, supra.

      . Compare Neil v. Biggers, supra note 28, 409 U.S. at 200-201, 93 S.Ct. 375, and see note 49, supra.

      . Compare id. at 200, 93 S.Ct. 375, and see note 49, supra.

      . See text supra at note 43.

      . We are mindful that the lineup took place two and a half months after the robbery. We think any negative implication from that circumstance was greatly outweighed by the positive factors.

      . See note 15, supra.

      . See Part II, supra.

      . See Part III, supra.

      . See text supra at notes 41-43.

      . The inconsistencies referred to were Ms. Butler’s (a) testimony at trial that a light was on in her bedroom, and her testimony on the hearing of the motion to suppress that there was no light on in that room, see note 4, supra; (b) her testimony at the hearing that no one was with Officer Kaclik at the photographic identification, and the latter’s testimony that he was accompanied by another officer, see note 17, supra; and (c) relatively small variations between Ms. Butler’s trial description and her post-offense description, text supra at note 44, regarding the age, height and build of the gunman.

      . See United States v. Telfaire, 152 U.S.App. D.C. 146, 149 n. 5, 469 F.2d 552, 555 n. 5 (1972).

      . Id.

      . Id., where we quoted the Fourth Circuit:
      [A] district judge has the power to refuse to permit a criminal case to go to the jury even though the single eye witness testifies in positive terms as to identity In deciding whether to permit a criminal case to go to the jury, where identification rests upon the testimony of one witness, the district judge ought to consider with respect to identification testimony the lapse of time between the occurrence of the crime and the first confrontation, the opportunity during the crime to identify ., the reasons, if any, for failure to conduct a line-up or use similar techniques short of line-up, and the district judge’s own appraisal of the capacity of the identifying witness to observe and remember facial and other features. In short, the district judge should concern himself as to whether the totality of circumstances “give[sj rise to a very substantial likelihood or irreparable mistaken identification.”
      United States v. Levi, 405 F.2d 380, 383 (4th Cir. 1968), quoting Simmons v. United States, supra note 29, 390 U.S. at 384, 88 S.Ct. 967. Compare Neil v. Biggers, supra note 28, 409 U.S. at 198-201, 93 S.Ct. 375.

      . See text supra at notes 19-21.

      . So, we need not consider the specifics of the test of competency applicable in other than single-eyewitness cases.

      . See Part III, supra.

      . United States v. Lewis, 140 U.S.App.D.C. 40, 42 n. 3, 433 F.2d 1146, 1148 n. 3 (1970); Russell v. United States, 133 U.S.App.D.C. 77, 82, 408 F.2d 1280, 1285, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969).

      . See note 61, supra.

      . See Part II, supra.

      . Compare United States v. Hallman, supra note 36, 142 U.S.App.D.C. at 94, 439 F.2d at 604, quoted supra note 38.

      . See text supra at note 10.

      . Appellant also argues that the introduction of the shotgun into evidence was improper because it was not sufficiently connected to the robbery. We disagree. Ms. Butler testified that the shotgun was similar to the shotgun which one of the robbers had. Roland Carey testified that the shotgun belonged to appellant, and that appellant had it when he left the apartment with Hiett to commit the robbery. On that testimony, the shotgun was properly admitted into evidence. United States v. McKinley, 158 U.S.App.D.C. 280, 281, 485 F.2d 1059, 1060 (1973); Pinkney v. United States, 124 U.S.App.D.C. 209, 211, 363 F.2d 696, 698 (1966). See also United States v. Thornton, 149 U.S.App.D.C. 203, 205, 462 F.2d 307, 309 (1972). Whether Ms. Butler’s testimony was to be credited, in view of her prior description of the weapon to the police, see note 16, supra, was within the exclusive province of the jury.

      . Not his counsel on appeal.

      . The relevant portion of the cross-examination was as follows:
      Q. How long have you all been living at the Ivanhoe Street address?
      A. Since the first of November.
      Q. And did you stay living together after December 17th?
      A. We kept the apartment until approximately the first — I think it was the first of March.
      Q. And then what happened?
      A. Well, the first of February [appellant] was arrested for another charge and his brother ran the apartment and it was a lot of controversy ....

      . Compare Hardy v. United States, 119 U.S. App.D.C. 364, 365, 343 F.2d 233, 234 (1964), cert. denied, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276 (1965) (reference to accused’s imprisonments); McIntosh v. United States, 114 U.S.App.D.C. 1, 309 F.2d 222 (1962) (reference to accused’s parole officer); United States v. Woodring, 446 F.2d 733, 736-737 (10th Cir. 1971) (reference to another criminal charge). See also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1966).

      . See note 3, supra, and accompanying text.


source: Caselaw Access Project

author: J. SKELLY WRIGHT, Circuit Judge:

license: Public Domain

text:
    Jerome WALDIE et al., Appellants v. James R. SCHLESINGER, Individually and as Secretary of Defense, et al. Don EDWARDS et al., Appellants v. James R. SCHLESINGER, Individually and as Secretary of Defense, et al.
    Nos. 74-1636, 74-1637.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 30, 1974.
    Decided Nov. 20, 1974.
    Rehearing Denied Jan. 29, 1975.

      Thomas S. Martin, Washington, D. C., with whom Virginia M. Dondy, Steven H. Brose, Margaret J. Gates, and Sara Ann Determan, Washington, D. C., were on the brief, for appellants.
    Royce C. Lamberth, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Arnold T. Aikens, Asst. U. S. Attys., were on the brief, for appellees.
    Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.
   J. SKELLY WRIGHT, Circuit Judge:

These consolidated actions base their challenge to the constitutionality of the “men only” admission policies of the United States Air Force Academy and the United States Naval Academy (the Academies) on the equal protection guarantees embodied in the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Plaintiffs-appellants are four congressmen, all of whom have nominated female applicants to the Academies, and two female nominees. Their complaints, filed September 26, 1973, seek a court order directing the defendant Academies to process the applications of the plaintiff nominees and “to consider the applications of any and all future women nominees on an equal basis with those of all other nominated applicants.”

After responding to plaintiffs’ interrogatories, defendants moved on April 29, 1974 to dismiss the complaints or, in the alternative, for summary judgment. This latter motion was supported by four affidavits (from the Deputy Secretary of Defense and the superintendents of three service academies), a 1948 colloquy taken from the Congressional Record, and an extract from a 1945 House Committee report on a bill to establish a Women’s Naval Academy. Joint Appendix (JA) at 321 — 322. Apparently in an attempt to secure the plaintiff nominees the possibility of admission to the Academies for the coming academic year, which was to begin in July, plaintiffs offered on May 15, 1974 a cross-motion seeking partial summary judgment on a significantly reduced claim. JA at 388, 442. In their motion based on the limited record then developed, plaintiffs sought only to have the Academies’ absolute bar on women declared unconstitutional and the applications of the plaintiff nominees processed. Expressly left open was the question “whether in future classes there may bé reason to reserve a fixed number of positions for male applicants * * *.” JA at 395 n.2, 450 n.2. This limited approach challenged neither the traditional — and statutory, see 10 U.S.C. §§ 6015, 8549 (1970) —exclusion of women from combat nor the propriety of the Academies preparing only men for these roles. In their cross-motion for partial summary judgment, plaintiffs questioned only the “constitutional validity of training men at the Academy to pursue careers in specialties which are open to women, while at the same time denying women an Academy education.” JA at 393, 448 (emphasis added). The success of this limited challenge would have allowed women equal access to the Academies only to the extent that the Academies trained officers for noncombat roles.

After a hearing on June 4, 1974, and a further hearing on June 14, 1974 in which plaintiffs sought a temporary restraining order, the District Court on June 19, 1974 granted summary judgment for defendants and denied plaintiffs’ motion for partial summary judgment. JA at 28a. After rejecting plaintiffs’ motion to maintain their suits as a class action, the court considered at some length the standard to be applied in testing the constitutional validity of the Academies’ sexually discriminatory admission policies. Despite widespread judicial uncertainty about the proper test for sex-based equal protection claims, the District Court settled on the least demanding form of judicial scrutiny, namely, the so-called “rational relationship” test. JA at 16-22. See, e. g., McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Then, relying on the affidavits presented by defendants, the court found the Academies to have met their minimal burden of rationality. These appeals followed.

Summary judgment is proper— indeed, it is desirable — when there is “no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P. Cf. Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 114, 479 F.2d 201, 206 (1973). In this case, however, we find that disputed issues of fact remain. The District Court relied on affidavits asserting the “conclusory opinions of military officers,” the very persons charged with unconstitutional discrimination. See Anderson v. Laird, 151 U.S.App.D.C. 112, 133, 466 F.2d 283, 304, cert. denied, 409 U.S. 1076, 93 S.Ct. 690, 34 L.Ed.2d 665 (1972) (separate opinion of Leventhal, J.). While that reliance is not per se improper, we think these affidavits are too ambiguous to be accepted as fact, untested by cross-examination.

Although appellees did not rely on their answers to appellants’ interrogatories to support their motion for summary judgment, and the District Judge made no mention of them in his opinion sustaining the motion, we have considered them. We find that these answers are either irrelevant to appellees’ motion for summary judgment or suffer from the same infirmities as the affidavits. Moreover, we are not nearly as certain as the District Court that the Supreme Court has settled on the “rationality” standard for testing sex-based equal protection claims. Rather, we think this area of constitutional law is still evolving and is often highly dependent on the facts of each case. Accordingly, a full development of the facts of these cases is essential to any meaningful assessment of appellants’ claim against the rapidly changing, and variously interpreted, case law. See Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). See also Brenden v. Independent School District 742, 8 Cir., 477 F.2d 1292 (1973); Eslinger v. Thomas, 4 Cir., 476 F.2d 225 (1973); Gruenwald v. Gardner, 2 Cir., 390 F.2d 591, cert. denied, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968); Kohr v. Weinberger, E.D.Pa., 378 F.Supp. 1299 (1974); Ballard v. Laird, S.D.Cal., 360 F.Supp. 643 (1973), prob. jur. noted, 415 U.S. 912, 94 S.Ct. 1405, 39 L.Ed.2d 465 (1974); Wiesenfeld v. Secretary of Health, Educ. & Welfare, D.N.J., 367 F.Supp. 981 (1973). See generally Gunther, The Supreme Court 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court, 86 Harv.L.Rev. 1 (1972); Get-man, The Emerging Constitutional Principle of Sexual Equality, 1972 Supreme Court Review 157; Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev. 1499 (1971).

The judgment of the District Court is reversed and these eases are remanded for a full trial on the merits.

Reversed and remanded.

      . For instance, a crucial element of plaintiffs’ case is the distinction between combat roles from which women are barred by policy and statute and combat support roles in which women may now serve. Without cross-examination, it is impossible to know exactly what the affiants mean when referring to the role of the Academies in preparing men for “combat.” Likewise, when affiants declare that the purpose of the Academies is to prepare men for combat, it is unclear whether they mean it is the sole purpose, the primary purpose, or merely a purpose. Plaintiffs’ case hangs on resolution of such ambiguities, and plaintiffs should have the opportunity to resolve them in court.

      . Of course, at trial plaintiffs are not bound to the limited claim they raised for purposes of their partial summary judgment motion. Instead, they may, if they wish, try the cases on their original complaints.


author: TAMM, Circuit Judge:

text:
    Joseph A. BRYANT et al., Appellants, v. JEFFERSON FEDERAL SAVINGS AND LOAN ASSOCIATION et al.
    No. 73-1968.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 23, 1974.
    Decided Dec. 9, 1974.

      Marilyn Fisher, Washington, D. C., for appellants.
    E. Tillman Stirling, Washington, D. C., with whom Robert S. Erdahl, Washington, D. C., was on the brief for appellees, Jefferson Federal Savings and Loan Association and Riggs National Bank of Washington, D. C.
    C. Francis Murphy, Corp. Counsel, Washington, D. C., for the District of Columbia and Richard W. Barton, Asst. Gen. Counsel, Washington, D. C., entered appearances for D.C. appellees.
    Before TAMM, LEVENTHAL and MacKINNQN, Circuit Judges.

        Circuit Judge LEVENTHAL took no part in the consideration or decision of this case.

   TAMM, Circuit Judge:

Plaintiffs-appellants, on behalf of themselves and all others similarly situated, challenge the constitutionality of the District of Columbia’s extrajudicial mortgage foreclosure procedures. They appeal the refusal of District Court Judge William Bryant, Jr., to convene a three-judge district court to hear their claim. We agree with Judge Bryant’s conclusion that the constitutional question presented is insubstantial and does not require hearing by a three-judge court pursuant to 28 U.S.C. § 2282 (1970), and therefore, we affirm.

Appellants, in purchasing a home, executed with appellee Jefferson Federal Savings and Loan Association a deed of trust which contained the following provision:

In TRUST, to permit the borrower, his heirs or assigns to use and occupy said realty until default be made in any of the covenants hereof, and, upon such default, and by request of the Association, to sell said realty, or any part thereof, at public auction in such manner, at such time and place, upon such terms and conditions, and after such previous advertisement as the said trustee may deem best for the interests of all concerned,

Appellants claim that this provision and others similar to it are authorized by 45 D.C.Code §§ 301, 603, and 615 (1973) and as such, violate the due process clause of the fifth amendment. They rely primarily on Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) for the proposition that pre-judgment seizures violate due process.

Section 301 of Title 45, District of Columbia Code, authorizes the inclusion in mortgages, deeds of trust, and other contracts conveying title to realty of clauses granting power to sell secured real property at public auction. 45 D.C.Code § 301 (1973). Sections 603 and 615(a) permit individuals holding such powers of sale to foreclose and sell the property by public auction without affording the homeowner a hearing prior to sale. 45 D.C.Code §§ 601, 615(a) (1973). Section 615(b) provides that “[n]o foreclosure sale under a power of sale provision . may take place unless the holder of the note . . . gives written notice ... to the owner of the [encumbered] real property [along] with a copy ... to the Commissioner of the District of Columbia at least 30 days in advance of the date of said sale.” 45 D.C.Code § 615(b) (1973). Finally, the statute creates no power of sale; extrajudicial foreclosure is permissible only when the instrument executed by the fee owner itself expressly authorizes the mortgagee or trustee to sell the property at a public auction if the owner defaults in his payments.

Appellants contend that their constitutional claim must be heard by a three-judge district court. 28 U.S.C. § 2282 mandates that only a three-judge court may enjoin an Act of Congress as unconstitutional. However, not every facial constitutional challenge to a Congressional statute must be heard by a three-judge court. When the claim is “wholly insubstantial” or when prior decisions make the claim “frivolous”, a three-judge court need not be convened. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). See also Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); C. Wright, The Law of Federal Courts § 50 (2d ed. 1970). Here, the district court judge found the claim to be insubstantial. Appellants are entitled to a hearing by a three-judge court if Judge Bryant’s finding of insubstantiality was in error. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Borden Co. v. Liddy, 309 F.2d 871 (8th Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 951, 9 L.Ed.2d 977 (1963); C. Wright, The Law of Federal Courts, supra.

For their constitutional claim to be substantial, appellants must establish initially that because of the presence of governmental involvement, the foreclosure procedure is subject to the constraints of the due process clause. Appellants then must demonstrate that the challenged procedures arguably do not afford adequate due process protections. We will examine each issue in turn.

The due process clause is a limitation on governmental, not private, action. See, e. g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Thus, appellants must establish “significant government involvement” in order for the challenged action to fall within the ambit of the constitutional protection. See Moose Lodge v. Irvis, supra, 407 U.S. at 173, 92 S.Ct. 1965; Reitman v,. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

There is no significant governmental involvement in the mortgage foreclosure practices attacked here. The power of sale was created, not through governmental enactment, but by private consensual agreement. We recognized long ago that a deed of trust “provides the remedies for its own enforcement.” Spruill v. Ballard, 61 App.D.C. 112, 58 F.2d 517, 519 (1932). The validity of such provisions has been continually upheld. In 1894, the Court of Appeals for the District of Columbia stated that “[a]s long as these contracts are entered into by permission of law, they must be respected and not interfered with, unless upon some well recognized principle of equity applicable alike to all contracts of the same general nature.” Anderson v. White, 2 App.D.C. 408, 417 (1894). That same Term, the Supreme Court held:

There is nothing in the law of mortgages, nor in the law that covers what are sometimes designated as ‘trust deeds in the nature of mortgages,’ which prevents the conferring by the grantor or mortgagor in such instrument of the power to sell the premises described therein upon default in payment of the debt secured by it, and, if the sale is conducted in accordance with the terms of the power, the title to the premises granted by way of security passes to the purchaser upon its consummation by a conveyance.

Bell Silver & Copper Mining Co. v. First National Bank, 156 U.S. 470, 477, 15 S.Ct. 440, 443, 39 L.Ed. 497 (1895). See also Scott v. Paisley, 271 U.S. 632, 635, 46 S.Ct. 591, 70 L.Ed. 1123 (1926); S & G Investment, Inc. v. Home Federal Savings & Loan Association, 164 U.S.App. D.C. 263, 505 F.2d 370 (1974).

Against this background, appellants advance three principal justifications for their theory that Congress’ enactment of the statutes in question significantly involved the government in authorizing the procedures and hence, constitute governmental action. They argue that the challenged actions are so intertwined with governmental policies as to constitute governmental action, that the government clearly authorizes and encourages a violation of due process or that Congress has invested creditors with the ability to perform a traditionally public function. See Appellants’ Br. at 14-17.

We think all these contentions are answered by a series of analogous cases where the traditional remedy of self-help repossession of chattels, now codified as section 9 — 503 of the Uniform Commercial Code, underwent constitutional challenge. As in the instant case, those plaintiffs alleged the presence of governmental action on “entanglement”, “encouragement”, and “delegation of public function” theories. See, e. g., Gibbs v. Titelman, 502 F.2d 1107 (3d Cir. 1974); James V. Pinnix, 495 F.2d 206 (5th Cir. 1974); Shirley v. State National Bank, 493 F.2d 739 (2d Cir. 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), cert. denied, 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974). These arguments were uniformly and decisively rejected. For example, the Ninth Circuit, in rejecting the argument that the mere enactment of the statute constituted governmental action because of excessive entanglement with the challenged action, noted:

Statutes and laws regulate many forms of purely private activity, such as contractual relations and gifts, and subjecting all behavior that conforms to state law to the Fourteenth Amendment would emasculate the state action concept.

Id. at 330-331 (footnote omitted); accord, Bichel Optical Lab, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973).

In response to an encouragement argument, the Third Circuit in Gibbs v. Titelman read Reitman v. Mulkey, supra, and Moose Lodge v. Irvis, supra, to require a finding of state action only if the state has significantly encouraged self-help repossession. However, the court there concluded that far from encouraging repossessions, the statute was passed to curb abuses associated with private repossession. See Gibbs v. Titelman, supra, 502 F.2d at 1110-1111. Similarly, Congress enacted the challenged statute here, 45 D.C.Code § 615(b), to correct the abuses connected with extrajudicial foreclosure. See 114 Cong.Rec. 22313 — 14 (1968) (remarks of Sen. Tydings). See also Young v. Ridley, 309 F.Supp. 1308, 1310-1311 (D.D.C.1970). We concur with the Third Circuit’s reasoning in Gibbs and find it equally applicable here. Accord, Shirley v. State National Bank, supra; Adams v. Southern California First National Bank, supra.

Addressing the argument that state action was present because the government delegated a traditionally public function, the Third Circuit panel in Gibbs noted that the self-help remedy has existed from the beginnings of common law and hence, found no delegated function. Gibbs v. Titelman, supra 502 F.2d at 1114; accord, Adams v. Southern California First National Bank, supra. The power of sale clause is also a long standing device in this jurisdiction, and we cannot conclude that Congress in passing the challenged statute delegated a traditionally public function. More correctly, the statute restricts the rights of a holder of a power of sale and imposes notice and time limitations.

In sum, we find that the analyses in the multitude of circuit court opinions upholding section 9-503 of the Uniform Commercial Code adequately dispose of appellants’ governmental action theories. Moreover, our conclusion is buttressed by the Second Circuit’s recent rejection of a similar three-fold attack to New York’s wage assignment statute. See Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974).

Even assuming arguendo the presence of governmental action, we cannot conclude that the statutes on their face violate the due process clause of the fifth amendment. In essence, the challenged statutes recognize the right of private individuals contractually to create power of sale clauses which operate as a waiver of certain potential preforeclosure rights. The facial validity of these statutes is controlled by D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972) and its companion case, Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972). In those cases, the Supreme Court concluded that statutes permitting the inclusion of confession of judgment provisions in debt instruments were not unconstitutional per se. Consequently, Overmyer and Swarb, each upholding statutes at least equally restrictive of alleged due process rights as the statutes here, clearly dispose of appellants’ facial constitutional challenge.

Our conclusion again finds support in the reported cases which have uniformly rejected similar attacks to analogous foreclosure statutes. In Law v. United States Department of Agriculture, the district court rejected plaintiff’s challenge on the basis of Overmyer and Swarb. 366 F.Supp. 1233, 1239 (N.D.Ga. 1973). Judge Gasch, in a widely-cited opinion issued before the Fuentes decision, rejected a due process challenge to the identical statutes under consideration here. See Young v. Ridley, supra. District Judge Keith in Northrip v. Federal National Mortgage Association rejected a facial constitutional attack to an analogous statute on the basis of Law, Young and Swarb. 372 F.Supp. 594, 598 (E.D. Mich.1974). Finally, a California state court has recently upheld its foreclosure statute against a federal due process challenge. United States Hertz, Inc. v. Niobrara Farms, 41 Cal.App.3d 68, 116 Cal.Rptr. 44, 56-57 (1974).

Consequently, we find that the constitutional issue raised by appellants was insubstantial, being amply disposed of by an abundance of existing case law. We hold that Judge Bryant was correct in his ruling that appellants have failed to meet the jurisdictional prerequisites to 28 U.S.C. § 2282.

Affirmed.

      . § 45-603. Estate of mortgagee or trustee conveyed.

      The legal estate conveyed to a mortgagee, his heirs and assigns, or to a trustee to secure a debt, his heirs and assigns, shall be construed and held to be a qualified fee simple, determinable upon the release of the mortgage or deed of trust, as hereinafter provided, or the appointment of a new trustee by agreement of the parties pursuant to section 45-614(b) or by judicial decree for the causes hereinafter mentioned: Provided, That nothing in this section contained shall prevent the passing of an absolute and unqualified estate in fee-simple under a deed made by the mortgagee, trustee, or new trustee in pursuance of the powers conferred by the mortgage or deed of trust.

      . § 45-615. Terms of sale and notice to be given.

      (a) If the length of notice and terms of sale are not prescribed by the mortgage or deed of trust, or be not left therein to the judgment or discretion of the mortgagee or trustee, any person interested in such sale may apply to the court, before such sale is advertised, to fix the terms of sale and determine what notice of sale shall be given.

      . An Act of Congress applicable only to the District of Columbia falls within the purview of this statute. See Shapiro v. Thompson, 394 U.S. 618, 625 n. 4, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

      . While many of the cases that discuss the question of “governmental action” deal with either “state action” under the fourteenth amendment or the “under color of state law” requirement of the Civil Rights Statutes, e. g., 42 U.S.C. § 1983 (1970), they are equally applicable here.

      . Most circuit courts have spoken on the issue. The Supreme Court has denied certiorari in two cases. See Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir.) cert. denied, 419 U.S. 1006, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), cert. denied, 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974).

      . We recognize that one District Court Judge in examining a similar foreclosure statute found state action on an encouragement theory. See Northrip v. Federal National Mortgage Assn., 372 F.Supp. 594, 597 (E.D.Mich. 1974). We note, however, that the Sixth Circuit has subsequently rejected an encouragement argument in a self-help repossession case which we find indistinguishable. See Turner v. Impala Motors, 503 F.2d 607 (6th Cir. 1974). Moreover, as more fully discussed infra, the judge in Northrip went on to uphold the statute against the merits of the due process challenge. 372 F.Supp. at 598.

      . Of course, the fact that potential due process rights might be waived through devices such as confession of judgment clauses or powers of sale does not preclude a finding that such a waiver was ineffective in individual cases. The effectiveness of such a waiver must depend on the facts of each individual case. See D. H. Overmyer v. Frick Co., 405 U.S. 174, 188, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Law v. United States Department of Agriculture, 366 F.Supp. 1233, 1240 (N.D.Ga. 1973). However, appellants here only seek the convening of a three-judge district court to enjoin the operation of the statute, and any alleged unconstitutional application of the statute is not before us.
      Our conclusion relieves us of the necessity of ascertaining the extent of the continued vitality of appellants’ principal case, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), in light of the Court’s subsequent opinion in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). In fact, several Justices believe that Mitchell overruled Fuentes. See id. at 623, 94 S.Ct. 1895 (Powell, J., concurring); id. at 629, 635, 94 S.Ct. 1895 (Stewart, J., dissenting).


author: PER CURIAM:

text:
    BOSTON COMMUNITY MEDIA COMMITTEE, MINORITY CAUCUS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
    No. 73-2124.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 27, 1974.
    Decided Jan. 15, 1975.
    Frank W. Lloyd, III, Washington, D. C., with whom Charles M. Firestone, Washington, D. C., Edward Hayes, Jr., and Benjamin Jones, Boston, Mass., were on the brief, for appellant.
    Daniel M. Armstrong, III, counsel, F. C. C., with whom Ashton R. Hardy, General Counsel and Joseph A. Marino, Associate Gen. Counsel, Washington, D. C., were on the brief for appellee.
    John W. Pettit, Washington, D. C., also entered an appearance for appellee.
    Before WILKEY, Circuit Judge, NICHOLS, Judge, U. S. Court of Claims, and GASCH, United States District Judge for the District Court of the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

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

   PER CURIAM:

We are called upon to review two orders of the Federal Communications Commission, Heftel Broadcasting — Boston, Inc., and RKO General, Inc. In the first order, the Commission approved the proposed assignment of the license of WROR — FM in Boston, Massachusetts, from RKO General, Inc. (RKO) to Heftel Broadcasting — Boston, Inc. (Heftel). It also expressed its disapproval of an agreement between appellant, Boston Community Media Committee, Minority Caucus (Minority Caucus) and Heftel in which Heftel agreed, should it become the licensee of WROR — FM, to (1) hire a minimum number of minority persons for certain positions at the station; (2) broadcast certain short messages “directed to areas of education and controversy which BCMC [Minority Caucus] feels should be broadcast to our audience” ; (3) broadcast “one hour of public affairs programming ... as [a] community access hour . . . ” ; and (4) pay a subscription fee of $1,000 a year or 1% of its net profit before taxes, whichever is greater, to the Minority Caucus. In the subsequent order, the Commission refused to reconsider its pri- or disapproval of the agreement on the ground that the entire matter had become moot since RKO and Heftel had decided not to consummate the assignment of license.

The Commission argues that this appeal should be dismissed for the same reason. We agree that this matter is now mooted by the decision of RKO and Heftel not to go forward with the assignment. However, we believe that the correct course is not to dismiss this appeal but, rather, to remand with a direction to the Commission to vacate its two orders and to enter in their place an order simply dismissing the matter as moot. In this way, the path is cleared for any future consideration by the Commission of the issues involved in agreements such as the one entered into by Heftel and the Minority Caucus without precedent having been established, the “review of which was prevented through happenstance.”

Although we have been importuned by the petitioners to express a view on the merits as to the Commission’s refusal to approve the contract involved here, we wish to make quite clear that we are expressing no opinion as to the legality of the agreement entered into between the Minority Caucus and Heftel. The only error we find in the Commission’s action, if this be error, is in the apparent citation of its action on the merits of these contract terms as a precedent, when the Commission considers (and we agree) that the whole matter has been mooted.

So ordered.

      . 42 F.C.C.2d 1076 (2 August 1973).

      . 44 F.C.C.2d 1004 (25 January 1974).

      . Joint Appendix, pp. la-3.

      . United States v. Munsingwear, 340 U.S. 36, 39-40, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950).


author: BAZELON, Chief Judge: MacKINNON, Circuit Judge:

text:
    COLONIAL TIMES, INC., d.b.a. The Daily Rag, Petitioner, v. Honorable Oliver GASCH, United States District Judge, Respondent.
    No. 74-1349.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 3, 1975.

      E. Edward Bruce and Michael D. Barnes, Washington, D. C., were on the pleadings for petitioner.
    Earl J. Silbert, U. S. Atty., John A. Terry and Steven R. Schaars, Asst. U. S. Attys., were on the brief for respondent.
    Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.
   BAZELON, Chief Judge:

Petitioner Colonial Times, Inc., publishes an “underground” newspaper in the District of Columbia known as “The Daily Rag.” The December 8, 1972 edition of “The Daily Rag” displayed on its cover a sketch of an elderly woman, fully dressed, wearing a large lapel button expressing in harsh and graphic language disapproval of the District of Columbia food tax. United States Postal Service employees handling copies of this edition of “The Daily Rag” objected to the cover and as a result four copies of “The Daily Rag” were withdrawn from normal mail processing for attempted hand delivery by a Postal Service Special Investigator. The Postal Service took further action against “The Daily Rag”, actions which are the subject of conflicting allegations set out in more detail below. These actions, at least as they were perceived by petitioner, led it to file a complaint in District Court, seeking injunctive relief against any further interference from the Postal Service in the regular mail processing of “The Daily Rag.” After filing this complaint petitioner sought to depose certain Postal-Service employees by other than stenographic means, pursuant to Fed.R.Civ.P. 30(b)(4). That Rule requires a party seeking depositions of this sort to obtain a court order authorizing the deposition. The District Court refused to issue such an order upon request and petitioner now moves this Court for a writ of mandamus to compel the District Court to grant the motion to take depositions by other than stenographic means. For reasons set out herein, we hold that the writ lies to review this particular refusal to enter an order permitting depositions by other than stenographic means, that the District Court has misapprehended the purpose of Rule 30(b)(4) and that the District Court should comply with the holdings of this opinion.

The factual disputes relevant to the purpose of the proposed depositions may be briefly stated. Petitioner alleges that in the course of hand delivery of the four copies of the December 8 edition, mentioned above, the USPS agent stated that the newspaper was obscene, advised the subscribers to refuse to accept delivery and generally coerced the subscribers by suggesting that intentional receipt of the paper might subject them to criminal prosecution. The Postal Service denies this characterization of the conversations between the agents and the subscribers, admitting only that the agent sought to recover from the subscriber a copy of the paper for investigative purposes. Petitioner also alleges that an Assistant Postal Inspector informed it that the December 8 edition would be submitted to the Department of Justice for appropriate action and that the Postal Service intended to contact all the paper’s subscribers to convince them to refuse future delivery. Petitioner finally alleges that the Postal Service stated it intended to monitor future publications of “The Daily Rag.” Even if these allegations are not proven, it would appear that petitioner has a substantial claim against the Postal Service. However, proof of these allegations would at least bear on the nature and extent of any injunctive relief granted to petitioner. Petitioner’s attempt to depose the Postal Service employees involved in the incidents alleged is relevant and necessary to this proof and thus to a resolution of the litigation. We first consider the nature of the District Court’s error to lay the foundation for our discussion of the propriety of mandamus relief.

I.

We find that the District Court’s construction of Rule 30(b)(4) is not consonant with the purposes of the Rule. The District Court denied petitioner’s motion to take depositions by other than stenographic means for essentially two reasons: (1) the government objected; and (2) petitioner has not demonstrated that a manifest injustice would occur due to the expense of stenographic methods of deposition. Both of these reasons were in turn supported by a general finding that the dangers to accuracy posed by depositions by other than stenographic means required the Court to take a restricted approach to the use of such alternative methods. These reasons do not support a blanket denial of petitioner’s motion.

Subpart (b)(4) was added to Rule 30 in 1970 with a cryptic commentary, here set out in the margin. The problem of interpretation raised by the Sub-part and its commentary is a result of the fact that the rule states that the judge “may” issue an order permitting depositions by other than stenographic means. The Rule does not state what grounds a trial judge may offer for a refusal to issue such an order. However, the Advisory Committee commentary, while far from lucid, does suggest that the reason for requiring an order — which is, of course, the source of the trial judge’s discretion — is to ensure that appropriate safeguards are taken to ensure the accuracy of the deposition. It apparently rejects, as one would imply from the promulgation of Subpart (b)(4) in the first place, the notion that the dangers to accuracy are in the abstract sufficient reason for a denial of a motion to take depositions by other than stenographic means. The burden Rule 30(b)(4) would impose upon the trial judge is to cause the parties together to agree upon a mode of deposition taking which will be approximately as accurate as stenographic depositions and to review the parties’ proposal once they have in good faith agreed. The District Judge by his outright rejection of petitioner’s motion without specific consideration of the feasibility of proposed safeguards ignored this burden and ruled in a manner inconsistent with the purpose of Rule 30(b)(4).

The fact that the government objected to petitioner’s motion and to the proposed method of deposition taking is not relevant to the issue of whether the motion should be denied outright. As a general proposition each party to a civil law suit has the right to take depositions of the other party, absent a protective order entered by the trial judge. It is difficult to imagine that this amendment to Rule 30 would have altered this general rule without a more explicit statement that such was intended. The better view of the function of objection by a party correlates Rule 26(c) protective order considerations with Rule 30(b)(4) motions. Under this view, the objection of a party is cause for the trial court to scrutinize the method of deposition taking to ensure that the problems of accuracy and trustworthiness are adequately handled by the movant’s proposal, such that the opposing party’s interests are not prejudiced. The opposing party has a similar duty to make specific objections to the proposed method of deposition taking and may not simply argue that every proposed method is insufficient.

Petitioner makes much of the fact that it and its counsel, the ACLU, do not have sufficient funds to take depositions by ordinary means. The District Court was not impressed by these claims of poverty and did not think that petitioner had made out a case of “manifest injustice.” The ability of the movant to pay for stenographic depositions should, as a general matter, be irrelevant to the grant of an order to take depositions by other than stenographic means. The Rule is designed to decrease everyone’s stenographic costs whenever that can be accomplished with no loss of accuracy and integrity.

In sum, we conclude that “experimentation with [Rule 30(b)(4)’s] newly authorized procedure should be encouraged rather than blocked . . ..” We note that every reported District Court case ruling on the issue— with one exception noted in the margin — has adopted the view of Rule 30(b)(4) set out above. Furthermore, we have verified that six trial judges in this Circuit have permitted the taking of depositions by other than stenographic means. Thus, the range of the trial judge’s discretion under Rule 30(b)(4) is limited to those actions necessary to promote accuracy and trustworthiness. The judge may deny a movant’s request under Rule 30(b)(4) only when he is convinced, after thorough examination of the movant’s proposal and on the basis of the other party’s specific objections and the judge’s experience with the differing forms of deposition procedure, that the particulars of the request do not reasonably ensure accuracy equivalent to stenographic depositions. The District Judge in his decision did not make this sort of inquiry. It follows that in so doing he mistook the purpose of Rule 30(b)(4) and committed error.

One issue which must be confronted in further proceedings is whether the operator of the tape recorder or other non-stenographic recording device must be independent of the parties. Pursuant to the view of Rule 30(b)(4) stated above, the function of the District Court is to review this particular issue to determine whether such an independent operator is necessary to preserve trustworthiness and accuracy. The independent operator would be a very significant if not the most significant expense in a deposition proceeding. Since the purpose of the Rule is to cut expense, the operator should be eliminated unless no alternatives exist to guarantee trustworthiness. Several safeguards which might provide an alternative to the independent operator have been suggested. First, the testimony may be recorded on two recorders and the opposing party may retain the tape from the second record. Second, the original tape once made should be deposited with the Court directly after the deposition to serve as a check on the accuracy of a transcript made subsequent to the deposition. Third, the witness must read a transcript of the recording made by the moving party and sign it under oath before the transcript may be admitted in evidence. The District Court should cárefully consider whether these safeguards are sufficient to dispense with the independent operator. This consideration should be made in light of the over-all spirit of experimentation that animates Rule 30(b)(4). We, of course, do not mean by this opinion to foreclose any conclusion based upon experience in the use of depositions in which the operator is not independent of the parties.

II.

We now turn to a discussion of whether mandamus will lie to correct the District Court’s erroneous view of Rule 30(b)(4). Use of the writ in ongoing litigation runs counter to the general rule that a party may appeal only a final judgment. The policy behind this “final judgment” rule is one of judicial administration. Permitting a party to appeal every order entered by the trial court would substantially delay trial and vastly increase the expense of litigation. Present crowded appellate dockets attest to the wisdom of this rule. However, there are countervailing considerations which make clear that this rule can not receive all-pervasive operation. Some egregious errors by the trial court may so misdirect the trial that a failure to immediately correct will force the parties through a useless trial, only to be ordered to a re-trial after appellate reversal of the final judgment. But this particular countervailing consideration can not be permitted to authorize an ad hoc judgment on each mandamus petition to determine whether an exemption from the final judgment rule is warranted on the particular facts. Such a practise would be subversive of the very policy of the final judgment rule since every litigant would feel that his case is just such an exemption. Thus, this Court, even if it dismissed these potentially frivolous mandamus petitions, would be forced to expend the effort which it is the purpose of the final judgment rule to avoid. The final judgment rule is effective only if it deters mandamus petitions in the first place. So if there are to be exemptions to the final judgment rule, those exemptions should be indulged only in clearly and narrowly defined areas to maintain the wholesome deterrence of the final judgment rule.

Errors of the sort traditionally cognizable by mandamus are those which result from the District Court acting outside its “jurisdiction.” But courts have never confined themselves to a narrow definition of what is a “jurisdictional” error and have generally recognized that the true test is whether the trial court had any legal power to act or refuse to act as it did. This view of “jurisdictional” errors suggests the possibility that a trial court has no jurisdiction to enter an erroneous ruling; but that suggestion has been specifically rejected. The concept of legal power to act implies not only a limitation on the type of error cognizable in mandamus (/. e. whether the court merely abused its discretion or instead acted in a manner in which it had no discretion to act) but also on the class of errors so cognizable. Despite a non-technical view of “jurisdictional” errors, there is surely a class of errors which are, no matter how egregious, not “jurisdictional” and not within the class of errors cognizable in mandamus. As a general proposition, discovery orders are not jurisdictional and thus may not be reached under traditional concepts of mandamus except in the most extraordinary circumstances.

In those cases involving errors which are undoubtedly in the jurisdictional class, courts have not simply deferred the existence of some discretion on the part of the trial judge, but have looked to whether the trial judge misconceived the nature of his discretion or otherwise considered an irrelevant factor or refused to consider a relevant factor in making the decision under review. The fact that the error of discretion was not apparent until after the court decided the principal case is no reason for refusing to decide the issue.

We point out this development because it relates to a more modern ground for the issuance of mandamus — the exercise of an appellate supervisory power. In particular, the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), held that mandamus would lie to review an “issue of first impression” in order to “settle new and important problems.” Schlagenhauf involved an issue of discovery, an issue clearly outside the normal class of errors reviewable under mandamus. However, it did involve an issue of pure law — even assuming the facts as the District Court perceived them to be, did the District Court have discretion to act or refuse to act as it did. Schlagenhauf authorizes departure from the final judgment rule when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice. The principle of Schlagenhauf has been recently applied in this and other Circuits. Schlagenhauf requires a grant of the writ in this case. However, in so ruling, we wish to make very explicit the specific considerations which lead us to this conclusion. Not every issue of first impression or every “basic, undecided” problem should be the basis for mandamus relief. First, we note that this case does present an issue of first impression. No appellate court has yet ruled, so far as we can discern, on the proper scope of the trial judge’s discretion under Rule 30(b)(4). Furthermore, this issue relates to an important aspect of discovery law — the manner of taking depositions. Rule 30(b)(4), as indicated by the various District Courts which have considered it, has the “potential for making a significant contribution to the efficient and economic administration of justice. ” The high cost of justice is a concern of all informed citizens. A liberal view of Rule 30(b)(4), designed to encourage experimentation to reduce costs, surely is an important step towards a more economic system of justice.

Second, there is an undeniable need to forestall future error and uncertainty in the administration of Rule 30(b)(4). The District Court misconceived the nature of its discretion under Rule 30(b)(4) and thus considered an irrelevant factor and did not consider certain relevant factors in making its decision. Thus, the Court’s error went to the source of its power under Rule 30(b)(4) and is the type of error, though not in the class of errors, traditionally reviewable under mandamus. By correcting this error, we may contribute to the development of standards under Rule 30(b)(4) in a way which promotes the necessary spirit of experimentation, which is crucial to a crystallization of experience with methods other than stenographic deposition. The essential didactic and expository function of supervisory mandamus is thus best served in situations such as the one we face here.

Third, resolution of this issue of discovery may be significant to the particular case under review. The availability of depositions by other than stenographic means may determine the state of the record presented to the District Court for decision and to this Court for review. If the record is inadequate, as it seemingly would be, then the Rule 30(b)(4) issue could well be controlling in the litigation. If the record is considered adequate, then the Rule 30(b)(4) issue will not necessarily affect the result in this case. However, we note that discovery issues of the sort raised by this case, while important to the general course of litigation, are often collateral to the litigation and thus lost to appellate review in fact if not in theory.

In conclusion, we find that mandamus lies in this case because the issue of discovery involved is one of first impression and is important to the administration of discovery. The error asserted concerns a misapprehension of the basic purpose of the discovery rule in issue — ■ that is, the use of irrelevant factors in decision and a failure to consider certain relevant factors — and its correction will provide direction to the District Court in developing standards under Rule 30(b)(4). Finally, the error may be significant to the particular case under review. If it is not, it is the sort of issue which is important to litigation in general but often lost to appellate review. All of these considerations support our decision that mandamus lies in this case. We emphasize that unless these considerations are present, the normal policy is that mandamus does not lie to review discovery orders. The views stated in Donnelly v. Parker, 158 U.S.App.D.C. 335, 486 F.2d 402 (1973) represent the approach of the Court and those views are not modified by anything stated herein. On this basis, we hold that the writ lies but find it unnecessary to issue a formal writ as part of our mandate. “We trade instead upon our confidence that without more the District Court will now take action to rectify the error which gave birth to the present proceeding."

So ordered.

MacKINNON, Circuit Judge:

In my view mandamus is an inappropriate remedy at this time in this case and I would just dismiss the petition without more.

      . The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony is accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcript made at his own expense.

      . See 39 C.F.R. §§ 123.8(b); 953.3-. 14 (1973), which have the force of law. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3101-3102, 41 L.Ed.2d 1039 (1974). These regulations are supportive of the First Amendment interests that permeate the area of the mailability of printed matter. See Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423 , 27 L.Ed.2d 498 (1971); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946); American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90 (1902). First Amendment interests are surely involved in this case. Compare the facts of this case with Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

      . The Court’s reasoning was as follows:
      “The Court recognizes that such a departure from the normal course of deposition-taking can lead to difficulties with the accuracy of the transcription of testimony given, and should be used only where a manifest injustice would occur due to the expense of stenographic recording. Plaintiff claims that, being a District of Columbia not-for-profit corporation, its limited resources would not be able to support the taking of the three depositions it contemplates. The Court, in the exercise of its discretion, feels that the objection of the government, coupled with the desire for accuracy in the transcription of testimony, overrides the relatively small additional expense to plaintiff of recorded testimony for three depositions in the usual manner.”
      Colonial Times, Inc. v. United States Postal Service, Civil No. 1633-73 (D.D.C. filed Dec. 10, 1973).

      . In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means e. g. by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional safeguards the court deems necessary.

      . We are not persuaded to a different result by the fact that an earlier draft of Subpart (b)(4) permitted the party seeking the deposition to simply designate the non-stenographic means, that designation being subject to a court order designed to protect accuracy and trustworthiness. See Kallen v. Nexus Corp., 54 F.R.D. 610, 612 n. 1 (N.D.Ill.1972). The final form of the Rule is sufficiently similar to this draft form to support the inference that the purpose of the court order is to review proposed deposition procedures to ensure accuracy and trustworthiness and not to permit the trial judge to deny a proposed deposition simply because that denial would not amount to a “manifest injustice.”

      . See Fed.R.Civ.P. 26(c); 30(a).

      . See Fed.R.Civ.P. 26(c); 4 Moore’s Federal Practise fifi26.67-.76 (2d ed. J. Moore & J. Lucas 1974).

      . We, of course, do not mean to hold that ability to pay may never be relevant in marginal cases of need, when the trial judge is not satisfied with the movant’s proposed deposition method.

      . Marlboro Prod. Corp. v. North American Phillips Corp., 55 F.R.D. 487, 489 (S.D.N.Y. 1972) (Frankel, J.).

      . Lucas v. Curran, 62 F.R.D. 336 (E.D.Pa. 1974); Jarosiewicz v. Conlisk, 60 F.R.D. 121 (N.D.Ill. 1973); Buck v. Board of Educ., 16 Fed.R.Serv.2d 112 (E.D.N.Y.1972); Marlboro Products Corp. v. North American Phillips Corp., 55 F.R.D. 487 (S.D.N.Y. 1972); Westcott v. Neeman, 55 F.R.D. 257 (D.Neb.1972); Carson v. Burlington Northern Inc., 52 F.R.D. 492 (D.Neb.1971); cf. United States v. LaFatch, 382 F.Supp. 630 (N.D.Ohio 1974). In another line of cases, both state and federal courts have permitted video tape and sound tape recordings of the confession or demean- or of an accused individual. See Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972) and voluminous authorities cited.

        The one possible exception to this apparent acceptance of non-stenographic forms of proof is Perry v. Mohawk Rubber Co., 63 F.R.D. 603 (D.S.C.1974). The case may be distinguished as involving a frivolous request for a video tape deposition and the denial thereof analogized to a Rule 26(c) protective order. And we might be inclined to agree that where deposition by non-stenographic means is burdensome on the parties, the movant must show more than “personal preference”, 63 F.R.D. at 607, to obtain a court order. However, it appears that Perry is not fully consistent with the liberal view of Rule 30(b)(4) outlined herein.
      In one other case, Carter v. Joseph Bancroft & Sons, 360 F.Supp. 1103, 1111 — 1112 (E.D.Pa.1973), the court denied, in considering a motion for a new trial, a motion to use an electronic recording when the opposing party objected that he had not had time to familiarize himself with the contents of a recording previously made without an order.

      . Alison v. Mastrovito, No. 2273-71 (Parker, J.); Washington Mobilization Comm. v. Wilson, No. 779-70 (Waddy, J.); Clark v. Webber, No. 2561-70 (Bryant, J.); Carter v. Carlson, No. 339-69 (Flannery, J.); A. Quaker Action Group v. Morton, No. 688-69 (Hart, J.); Allen v. Hickel, No. 1951-69 (Pratt, J.).
      The experience of this Circuit concerning the transcription of stenographer’s notes of trial proceedings offers an additional reason for encouraging the development of non-stenographic means of deposition-taking. This Court has on numerous occasions had to warn the District Court and their reporters that it will not tolerate inordinate delay in the transcription of stenographer’s notes. These warnings have included orders to show cause why the reporter should not be held in contempt of this Court. In one particularly egregious case, a court reporter was actually held in contempt and jailed after a show cause order by this Court.
      The delay in transcription is generally caused by the large amount of in-court time spent by the court reporters.
      At present the District Court and their reporters protect against error by tape recording the trial, exactly the sort of recordation that petitioner in this case proposes. However, it should be noted that the Sixth Circuit has stated that an untranscribed phonographic record of a habeas corpus proceeding violates Fed.R.App.P. 10. See Wedding v. Wingo, 483 F.2d 1131, 1137 (6th Cir. 1973), aff’d on other grounds, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). Provision of an untranscribed tape recording to an indigent defendant survived an equal protection challenge in State ex rel. Moreno v. Floyd, 85 N.M. 699, 516 P.2d 670 (1973).

      . Compare Kallen v. Nexus Corp., 54 F.R.D. 610 (N.D.Ill.1972) with Marlboro Prod. Corp. v. North American Phillips Corp., 55 F.R.D. 487, 490 (S.D.N.Y.1972) and Lucas v. Curran, 62 F.R.D. 336, 338-339 (E.D.Pa.1974).

      . See Cobbledick v. United States, 309 U.S. 323, 324-325, 60 S.Ct. 540, 84 L.Ed. 783 (1940); American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 280 (2d Cir. 1967).

      . See Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. 539 (1932); Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 993 (1961).

      . Cf. Thornton v. Corcoran, 132 U.S.App. D.C. 232, 407 F.2d 695, 703 (1969).

      . See Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945); Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). See also Donnelly v. Parker, 158 U.S. App.D.C. 335, 486 F.2d 402, 405-406 (1973).

      . Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

      . See Donnelly v. Parker, 158 U.S.App.D.C. 335, 486 F.2d 402, 406-07, 408 n. 28 (1973); International Business Machines Corp. v. United States, 480 F.2d 293 (2d Cir. 1973) (en banc); American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277 (2d Cir. 1967); 4 Moore’s Federal Practise fl 26.83 [9.-3], at 26-612 to 615 (2d ed. J. Moore & J. Lucas 1974). An example of the extraordinary circumstances which might justify traditional mandamus in the area of discovery is Investment Properties Int’l, Ltd. v. IOS, Ltd., 459 F.2d 705 (2d Cir. 1972).

      . This has been most evident in the cases dealing with transfer of actions. See Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 244-245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); Jones v. Gasch, 131 U.S.App.D.C. 254, 404 F.2d 1231, 1242 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed.2d 286 (1968); Fine v. McGuire, 139 U.S.App.D.C. 341, 433 F.2d 499 (1970); Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873 (1951). See also Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972); In re Union Leader Corp., 292 F.2d 381 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 795 (1961); Mitchell v. Sirica, 163 U.S.App.D.C. 373, 502 F.2d 375, 387-390, cert. denied, 418 U.S. 955, 94 S.Ct. 3232, 41 L.Ed.2d 1177 (1974) (MacKinnon, J. dissenting).

      . See La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Note, Supervisory and Advisory Writs Under the All Writs Act, 86 Harv.L.Rev. 595, 607 et seq. (1973); 9 Moore’s Federal Practise fl 110.26, at 287 (2d ed. J. Moore & B. Ward 1973).

      . The holding of Schlagenhauf is not disturbed by Will v. United States, 389 U.S. 90, 104 n. 14, 88 S.Ct. 269 (1967). First, Schlagenhauf involved a question of discovery and thus could not have been based on traditional concepts of mandamus. See also Note, supra note 20, at 614-16. Second, as will be developed in the text, the case sub judice also implicates a question of the District Court’s power to deny motions to take depositions by other than stenographic means — whether the District Court has the “power” to consider that a manifest injustice will occur unless the motion is granted and whether the Court has the “power” to deny outright a motion of this sort without a particularized scrutiny of the safeguards proposed. Third, in Will the Circuit Court decision under review did not contain the exposition which is essential to supervisory or advisory mandamus. Fourth, Will involved an interlocutory appeal by the government, appeals which have traditionally been disfavored. See also United States v. Green, 134 U.S.App.D.C. 278, 414 F.2d 1174 (1969). Finally, as reflected in the cases cited note 22 infra, the various courts which have considered the Schlagenhauf principle after Will have at least implicitly held that Will does not modify that principle.

      . See Nixon v. Sirica, 159 U.S.App.D.C. 58 487 F.2d 700, 706-708 (1973) (en banc); In re Ellsberg, 446 F.2d 954 (1st Cir. 1971); United States v. United States District Court, 444 F.2d 651 (4th Cir. 1971), aff'd, 407 U.S. 297, 307 n. 3, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969), vacated as moot sub nom. United States v. Gifford-Hill-American, Inc., 397 U.S. 93, 90 S.Ct. 817, 25 L.Ed.2d 77 (1970); Miller v. United States, 403 F.2d 77 (2d Cir. 1968) (alternative ground); Atlass v. Miner, 265 F.2d 312 (7th Cir. 1959), aff'd, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960). Cf. SEC v. Krentzman, 397 F.2d 55, 59 (5 Cir. 1968). To be sure, Nixon v. Sirica did involve traditional grounds for mandamus but it reached the most important question in the case — under what circumstances presidential conversations are privileged from non-disclosure — on the basis of the Schlagenhauf principle.

      . Kallen v. Nexus Corp., 54 F.R.D. 610, 613 (N.D.Ill.1972).

      . Cf. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Lindsey v. Normet, 405 U.S. 56, 76-79, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Adkins v. E. I. Du Pont De Nemours & Co., 335 U.S. 331, 339-340, 69 S.Ct. 85, 93 L.Ed. 43 (1948); Note, A First Amendment Right of Access to the Courts for Indigents, 82 Yale L.J. 1055 (1973).

      . Cf. 28 U.S.C. § 1292(b) (1970); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969); Groover, Christie & Merritt v. LoBianco, 119 U.S.App.D.C. 50, 336 F.2d 969 (1964).
      In this sense, the standards of mandamus may be incorporated to the standards for the grant of injunctive relief (the writ being viewed as an appellate injunction of sorts). For possible uses of this “equitable” mandamus, see Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970); aff'd by an equally divided court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971); Southern Ry. Co. v. Templar, 463 F.2d 967 (10th Cir. 1972); United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966); In re United States, 348 F.2d 624 (1st Cir. 1965); Hartley Pen Co. v. United States Dist. Court, 287 F.2d 324 (9th Cir. 1961). See generally Donnelly v. Parker, 158 U.S.App.D.C. 335, 486 F.2d 402, 409 (1973) (dictum). Compare International Business Machines Corp. v. United States, 480 F.2d 293 (2d Cir. 1973) (en banc); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972). Indeed, it is settled that mandamus will not lie where an alternate remedy at law exists. See Ex parte Republic of Peru, 318 U.S. 578, 584, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Cartier v. Secretary of State, 165 U.S.App.D.C. 130, 506 F.2d 191 (1974).
      Even if the various factors mentioned in the text are not present and, thus, the court is prevented from issuing the writ, the expository and didactic function of supervisory mandamus may be performed by publication of a fully reasoned opinion rejecting the writ but indicating doubts about the District Court’s decision. See Ehrlichman v. Sirica, Nos. 74-1826, -1829 (D.C.Cir. Aug. 22, 1974); Strachan v. Sirica, No. 74 — 1868 (D.C.Cir. Sept. 20, 1974) (Statement of Bazelon, C. J.); Stans v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973); United States v. Allen, 133 U.S.App. D.C. 84, 408 F.2d 1287 (1969); Thornton v. Corcoran, 132 U.S.App.D.C. 232, 407 F.2d 695 (1969).

      . Cf. Cohen v. Beneficial Industrial Finance Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and discussion in note 25 supra.

      . Yablonski v. United Mine Workers of America, 147 U.S.App.D.C. 193, 454 F.2d 1036, 1042 (1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972).