author: KOELSCH, Circuit Judge:

text:
    Christian F. WYLLER et al., Plaintiffs-Appellees, v. FAIRCHILD HILLER CORPORATION, Defendant-Appellant.
    No. 73-2480.
    United States Court of Appeals, Ninth Circuit.
    Sept. 13, 1974.

      Theodore M. Pease, Jr. (argued) of Burr, Pease & Kurtz, Anchorage, Alaska for defendant-appellant.
    Avrum M. Gross (argued) of Faulkner, Banfield, Doogan, Gross & Holmes, Juneau, Alaska, for plaintiffs-appellees.
    Before KOELSCH and CHOY, Circuit Judges, and RENFREW, District Judge.

      Tke Honorable Charles ?. Renfrew, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

KOELSCH, Circuit Judge:

This litigation arises from a helicopter crash near Ketchikan, Alaska, in which two persons were killed, a third seriously injured, and the helicopter destroyed. The aircraft was owned by Livingston Copters, Inc. (Livingston) and piloted by Kelly Everett Hays, one of its employees. The plaintiffs are the sole surviving passenger (Wyller), the adminis-tratrix of the Hays estate, and Livingston. The defendant, Fairchild Hiller Corporation (Fairchild), designed and manufactured the helicopter and a “fail-safe” mechanism with which it was equipped.

Plaintiffs brought their actions in the Superior Court for the State of Alaska. In their complaints they charged Fair-child with negligence, strict product liability and breach of implied warranty. Their common-theory was that the fail-safe mechanism malfunctioned during normal flight and in circumstances which inevitably resulted in the crash of the aircraft. Fairchild removed the actions to the United States District Court for the District of Alaska, where they were consolidated and tried to a jury. At the conclusion of the trial, which extended over a period of some three weeks, the jury returned the verdicts for plaintiffs and against Fairchild as follows: (1) Wyller, $350,000; (2) Hays’ administratrix, $250,000; and (3) Livingston, $35,000. The district court denied Fairchild’s subsequent motion for judgment n. o. v. or, alternatively, a new trial, and entered judgment on the verdicts. Fairchild appeals. We affirm.

I. Sufficiency of the Evidence

Fairchild’s initial contention is that the evidence adduced by the plaintiffs was insufficient to support the verdicts. We disagree. Having studied the conflicting technical theories advanced 'by the parties and having reviewed the lengthy record of the case, we are convinced that the evidence, including the testimony of Wyller and of plaintiffs’ experts, the broken fail-safe unit and the unseized transmission, the absence of severe damage to at least one of the leading edges of the main rotor blades, the burnished appearance of the shear ring, and the ultimate landing point of .the helicopter, is more than sufficient to support the jury’s resolution of the conflict.

II. The “Excluded” Testimony of Dr. Roberts

Fairchild next contends that the district court committed prejudicial error in refusing to allow the testimony of its metallurgical expert, Dr. Roberts, concerning his examination of the surface of a shear ring which had been made to fail experimentally several months before the trial. Again we disagree.

Plaintiffs had sought to discover, by means of an interrogatory, whether Fairchild had conducted any tests on fail-safe units similar to the one which had failed during the accident so as to ascertain whether such units could fail under flight conditions;, Fairchild had answered that interrogatory in the negative. Thus when Fairchild first offered Dr. Roberts’ testimony respecting the results of tests conducted subsequent to Fairchild’s negative response, plaintiffs’ counsel moved that the court exclude such testimony as a sanction for Fair-child’s failure to supplement its answer in accordance with Rule 26(e), F.R.Civ. P. The court did not rule immediately; instead it requested that Fairchild’s counsel discontinue interrogation on the point until it had had an opportunity to review the matter over the weekend.

On the following Monday, the trial resumed and Fairchild made no additional attempt to introduce the challenged testimony; no ruling on the plaintiffs’ motion to exclude the testimony appears on the record. Under these circumstances, we see no reason to disregard the general rule that, where evidence offered and objected to has been temporarily excluded, the party who sought to introduce such evidence must renew his effort in that respect at a later, appropriate stage of the trial; his failure to do so precludes him from asserting on appeal that the evidence was erroneously excluded.

Even assuming arguendo that the actions of the district court may somehow be construed as a “ruling” excluding the challenged evidence and further assuming that such a “ruling” was error, Fairchild has shown no prejudice. The district court permitted Dr. Roberts to testify as to his opinions concerning the burnished appearance of the shear ring and its source; while the “excluded” evidence would presumably have supported his stated opinions, we do not think it would have substantially added to their weight.

III. Wyller’s Hypnosis Treatments

After the close of discovery and some four years after the crash, Wyller underwent several treatments involving hypnosis for the purpose of improving his limited recollection of the events surrounding the crash. Prior to Wyller’s testifying at trial, Fairchild moved to limit the former’s testimony to that given at his deposition, or, alternatively, that before any matter recalled after the hypnosis treatments was received in evidence, the hypnotist be required to establish the reliability of the procedure employed. The district court denied the motion, and Wyller was permitted to testify as to his recollection both prior and subsequent to the treatments. Thereafter, the hypnotist, a professional psychologist experienced in both aviation psychology and “hypnotic age regression” technique, fully elucidated the procedures employed.

We cannot accept Fairchild’s argument that Wyller’s testimony was rendered inherently untrustworthy by his having imdergone hypnosis. Wyller testified from his present recollection, refreshed by the treatments. His credibility and the weight to be given such testimony were for the jury to determine. Fairchild was entitled to, and did, challenge the reliability of both the remembered facts and the hypnosis procedure itself by extensive and thorough cross-examination of Wyller and the hypnotist. Under the circumstances, we perceive no abuse of discretion by the district court. See Harding v. State, 5 Md.App. 230, 246 A.2d 302, 311-312 (1968), cert. denied 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969); State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312, 315-316 (Or.App.1971).

Nor will we consider Fairchild’s argument that the district court erred in admitting testimony from Wyller and the hypnotist concerning the contents of tape recordings made while Wyller was in a hypnotic state. The assignment is not properly raised on appeal, for the record indicates that, in each instance where such evidence was received, Fair-child failed to object to its admission.

Fairchild also contends that the district court erred in permitting the hypnotist’s testimony as to the reliability of the statements made by Wyller while the latter was under hypnosis. Once again, the assignment is not properly before us due to Fairchild’s failure to object at trial.

Fairchild also contends that the district court erred in failing to give a cautionary instruction to the jury regarding Wyller’s testimony insofar as it consisted of information recalled by means of hypnosis. Fairchild had attached a proposed instruction on the subject to its pretrial memorandum, in compliance with a district court order that proposed instructions on unique issues be submitted prior to trial. However, when the parties were called upon to submit their respective sets of proposed instructions near the close of trial, Fairchild submitted no such cautionary instruction. After the court had assembled the set of proposed instructions it intended to give — a set which included no cautionary instructions on hypnosis —respective counsel were given an opportunity to review the proposed set and make objections. Fairchild made no objection to, nor mention of, the court’s failure to include the cautionary instruction. While we believe that such an instruction would have been appropriate under the circumstances, see Harding, supra, at 312, 246 A.2d 302, the assignment is barred by Rule 51, F. R.Civ.P. See Monsma v. Central Mutual Insurance Co., 392 F.2d 49, 52 (9th Cir. 1968); Bertrand v. Southern Pacific Co., 282 F.2d 569, 572 (9th Cir. 1960). We give little weight to Fair-child’s assertion that it had insufficient time to review the proposed instructions prior to making objection; it never made that complaint known to the trial court.

IV. The Court’s Refusal to Admit Evidence of the Loan Receipt Agreement between Wyller and Livingston

In August, 1970, Wyller and Livingston entered into an agreement whereby Wyller released Livingston from any claims he might have against it arising from the crash and Livingston “loaned” Wyller almost $75,000 for attorneys’ fees and costs in Wyller’s anticipated action against Fairchild. The “loan” was to be repaid, with six per cent interest, only to the extent that Wyller recovered from Fairchild, and it was agreed that Wyller would not settle his claim against Fairchild without Livingston’s consent.

The instant agreement bears a marked similarity to the “loan receipt” device by which indemnity and liability insurers sometimes settle losses by advancing to the insured the amount of his loss in the form of a loan, repayable only in the event and to the extent that the insured obtains a recovery for the loss from a third party. Such agreements insulate the insurer from the necessity of seeking to recoup its loss in its own name and from the judicially recognized prejudice of juries against insurance companies; they also enable injured plaintiffs to avoid the acceptance of unjust settlements out of necessity. See generally Annotation, Insurance: Validity and Effect of Loan Receipt or Agreement between Insured and Insurer for a Loan Repayable to the Extent of Insured’s Recovery from Another, 13 A.L.R.3d 42 (1967).

Fairchild argues that the district court should have permitted it to cross-examine both Wyller and Livingston’s president concerning the terms of the agreement in order to impeach the testimony of each by showing bias. We are not persuaded. The district court was within its discretion in concluding under the circumstances that the policy of encouraging extrajudicial settlements and the recognized danger of misleading the jury inherent in the admission of such evidence, see Luth v. Rogers & Bab-ler Construction Co., 507 P.2d 761, 768 (Alas.1973), outweighs its probative value as impeachment. Cf. Hutchings v. State, 518 P.2d 767, 770 n. 8 (Alas. 1974). Both Wyller and Livingston, as parties plaintiff, had an obvious financial interest in the imposition of liability on defendant Fairchild; evidence that Livingston may have had a partial interest in Wyller’s recovery is of little probative value where its financial interest in the specific outcome desired by both was already apparent to the jury. Cf. Breitkreutz v. Baker, 514 P.2d 17, 28-29, 29 n. 30 (Alas.1973).

V. Red Party in Interest

Fairchild asserted in the trial court and argues in its briefs on appeal that the funds which Livingston “loaned” to Wyller were actually provided by Livingston's insurer. The insurer, however, was neither a signatory to, nor mentioned in, the agreement, and there was no assignment of Wyller’s cause of action to either Livingston or the insurer. Prior to trial, Fairchild moved to add the insurer as an additional party plaintiff or, in the alternative, for permission to amend the pleading to indicate that Wyller and Livingston were suing for the use and benefit of Livingston’s insurer; it argued that the agreement did not evidence a true loan, but rather a payment which subrogated Livingston’s insurer to the position of Wyller, thus making the insurer a real party in interest under F.R.Civ.P. 17(a). The district court, relying on Waterway Terminals Co. v. P. S. Lord Mechanical Contractors, 242 Or. 1, 406 P.2d 556 (1965), ruled that the agreement evidenced a true loan and denied the motion to add the insurer as a party plaintiff. It also denied the motion to amend the pleadings, ruling that the sole purpose in Fairchild’s seeking such amendment was to prejudice the minds of the jurors with knowledge that plaintiffs were insured.

We express no opinion on the propriety of the district court’s reasons for denial of the motions, for our review of the record reveals that there is insufficient evidence of the insurance company’s involvement in the “loan” transaction to warrant a finding that it is a real party in interest under any theory. The agreement itself merely indicates a transaction between Wyller and Livingston, and Fairchild’s affidavit in support of the motion merely indicates that the “loan” funds did not come from Livingston; the actual source of the funds is not disclosed. Absent some substantial showing that this particular insurer was in fact involved in the transaction, the district court would have exceeded its discretion in requiring the insurer’s joinder as a real party in interest.

Fairchild’s remaining contentions have no merit and are not of sufficient substance to warrant discussion.

Affirmed.

      . The record does not. reveal whether the estate or heirs of William (1. Canady, the other decedent, ever claimed or received compensation for his death.

      . Rule 26(e), F.R.Civ.P., provides:
      “(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows :
      “(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
      “(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
      "(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.”

      . Fairchild’s counsel has supplemented the record on appeal in an effort to sustain his stated belief that a ruling granting the motion to exclude was made in chambers outside the presence of a court reporter. The supplementary materials, however, are vague and conflicting, and they are simply insufficient to xiphoid the, conclusion that such a ruling was made.

      . tiee, e. g., Bridgeport Type Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 268 A.2d 391, 395 (1970); Kasten Construction Co. v. State Roads Comm., 238 Md. 38, 207 A.2d 505, 506 (1965); State v. Kendrick, 383 S.W.2d 740, 746 (Mo.1964); Marstaller v. Albina Dock Co., 191 Or. 145, 229 P.2d 269, 275 (1951); cf. Torres v. Alaska, 519 P.2d 788, 794-795 (Alas.1974); see generally Annotation, Necessity and Sufficiency of Renewal of Objection to, or offer of, Evidence Admitted or Excluded Conditionally, 88 A.L.R.2d 12, 124-140 (1963).

      . We note that Fairchild argued in the district court that it had not violated Rule 26(e) in failing to supplement its response because the evidence involved was not a matter of “substantial importance.”

      . Even assuming arguendo that the assignment wore properly before us, the tapes themselves were never offered into evidence, and each reference to an out-of-court statement was offered not to prove the truth of the statement but for a valid and independent purpose; had an objection been timely made, and the court called upon to exercise its discretion, the admission of the statements would have been permissible. See, e. g., People v. Hiser, 267 Cal.App.2d 47, 72 Cal.Rptr. 906, 915-916 (1968); State v. Chase, 206 Kan. 352, 480 P.2d 62, 66-67 (1971); State v. Harris, 241 Or. 224, 405 P.2d 492, 499 (1965); Lemmon v. Denver & Rio Grande Western R. Co., 9 Utah 2d 195, 341 P.2d 215, 218 (1959).

      . Had an objection been made, it might well have been sustained for the questioned testimony bears a similarity to that concerning the results of polygraph tests, see Pulakis v. State, 476 P.2d 474, 479 (Alas.1970); People v. Harper, 111 Ill.App.2d 204, 250 N.E.2d 5, 7 (1969). However, in view of Fair-child's extensive cross-examination challenging the hypnotist’s opinion and basis thereof and the fact that Wyller’s relevant testimony of the events surrounding the crash was entirely from his present recollection, we cannot say that the district court’s failure to exclude the testimony was an error affecting the substantial rights of the parties, F.R. Giv.P. 61, or creating a high likelihood of a miscarriage of justice, Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91-92 (Alas.1974).

      . Rule 51, F.R.Civ.P., provides in pertinent part:
      “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”

      . We express no opinion as to whether, for purposes of the Uniform Contribution Among Tortfeasors Act (Alas.Stats. § 09.-16.040) the “loan” funds, or any portion of them, may constitute a payment, or consideration, for the release, rather than a true loan, thus reducing the amount of Wyller’s claim against Fairchild. See Layne v. United States, 460 F.2d 409, 410-411 (9th Cir. 1972).

      . Rule 17(a), F.R.Civ.P., provides in pertinent part:
      “Every action shall be prosecuted in the name of the real party in interest.”

      . “Historically the courts of the Territory of Alaska considered the opinions of the Supreme Court of Oregon as being highly persuasive. There has been no indication to date that the Supreme Court of the State of Alaska will deviate from or abandon this practice.” Alaska Airlines Inc. v. Northwest Airlines, Inc., 228 F.Supp. 322, 326 (D.Alas.1964), aff’d 351 F.2d 253 (9th Cir. 1965).

      . The affidavit of Fairchild’s counsel merely states:
      “3. To the best of my information and belief, Mr. Arlo Livingston [Livingston’s president] testified that Livingston Copters, Inc. is insured with Underwriters of Lloyd’s of London with single limit of $1,000,000. To the best of my knowledge and belief, he also testified that the payment which Mr. Wyller received pursuant to the loan-receipt agreement was not made by Livingston Copters, Inc.”
      Fairchild’s memorandum in support of the motion states:
      “It is evident from the deposition of Arlo Livingston which was taken on May 19, 1972, that the payment to Wyller made pursuant to the agreement, was made by Livingston Copter’s insurer.”
      However, that deposition is not before us as Fairchild never made it a part of the record on appeal.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge:

license: Public Domain

text:
    George D. DUFFIELD, Appellant, v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation, and J. Darrell Richmond, Administrator of Memorial Division of Charleston Area Medical Center, Inc., Appellees.
    No. 73-2161.
    United States Court of Appeals, Fourth Circuit.
    Argued June 3, 1974.
    Decided Sept. 26, 1974.

      John L. Boettner, Jr., Charleston, W. Va., for appellant.
    George G. Guthrie, Charleston, W. Va. (Howard R. Klostermeyer and Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., on brief) for appellees.

      Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The appellant, a surgeon, challenges on constitutional grounds the withdrawal of his medical staff privileges by the Board of Trustees of the defendant Hospital. The District Court dismissed the action. We affirm.

The controversy between the parties began when one of the predecessor units of the present merged Hospital gave notice of the ex parte withdrawal, subject to appeal, of appellant’s hospital privileges and when, upon appeal from such notice being taken by the appellant, the appellant was not furnished a statement of the charges on which the withdrawal was based sufficiently in advance of the hearing to be meaningful, and was denied at the hearing itself the right to confront and cross-examine the witnesses supporting the withdrawal and to submit testimony on his own behalf. It was the contention of the appellant that he was thereby denied hospital privileges without being accorded necessary procedural due process. That contention was accepted in an earlier order of the District Court, resulting in a temporary injunction against the termination of the appellant’s hospital privileges until such time as the appellant was given an administrative hearing according him procedural due process. This restraining order was in effect on June 29, 1972 at the time the Governing Board of the defendant consolidated Hospital, after reconsideration of the action earlier taken by the board of its predecessor unit, and acting on the recommendation of its own Department of Surgery, revoked the appellant’s hospital privileges, subject to a right of appeal to a Joint Conference Committee as hereafter described.

When the appellant was notified by the administrator of the Hospital of the withdrawal of his privileges and of the charges on which the withdrawal was based along with his right of appeal, he asserted that his rights were, in the existing posture of the case, determinable only by the District Court and not in an administrative hearing before the Joint Conference Committee. The Hospital construed this as a waiver of the right to an administrative hearing under its by-laws and moved both to vacate the restraining order and to dismiss the action. After a hearing, the District Court vacated in part the restraining order but ordered the Hospital to grant the appellant a prompt administrative hearing and to “ ‘make available to plaintiff’s counsel copies of all documents and evidence upon which charges are based with regard to the administrative hearing, and that both parties make available to counsel for the other party a list of all the names and addresses of witnesses who will be called to testify at said administrative hearing within ten days prior to the administrative hearing.’ ”

An administrative hearing was thereafter set. Under the by-laws of the Hospital, such hearing was conducted by the Joint Conference Committee. This Committee consists of ten members, five of whom are “selected from the Executive Committee” of the medical staff and the remainder are the members of “the Executive Committee” of the Board. The hearing before this Committee began on October 2 and continued, with interruptions, until November 13, 1972. On December 6 the appellant filed his motion to disqualify certain members of the Joint Conference Committee. The motion was overruled and the Joint Committee thereafter recommended unanimously in favor of the withdrawal of appellant’s hospital privileges, which recommendation was approved by the Governing Board of the Hospital on January 16, 1973. Following this approval by the Governing Board of the recommendation for withdrawal, the Hospital filed its motion to dismiss. Some weeks later the appellant moved to amend his complaint to allege the disqualification of the Joint Committee. These motions in due course came on for hearing in the District Court and resulted in a decree sustaining the Hospital’s motion to dismiss and denying the appellant’s motion to amend. This is the order for review on appeal.

Jurisdiction of this action is manifest. When a hospital has received, as the defendant Hospital has, Hill-Burton financial assistance, the federal and state involvement is such as to subject the hospital to the obligations imposed by the Fourteenth Amendment, Sams v. Ohio Valley General Hospital Association (4th Cir. 1969) 413 F.2d 826, 828, and will sustain federal jurisdiction of a claim of denial of procedural due process, as guaranteed by such Amendment, in the withdrawal or revocation of a doctor’s hospital privileges. Section 1343(3), 28 U.S.C., and Section 1983, 42 U.S.C.; Christhilf v. Annapolis Emergency Hospital Ass’n, Inc. (4th Cir. 1974) 496 F.2d 174, 178. In the case of a withdrawal or denial of hospital privileges, procedural due process entitles a physician to a full, evidentiary administrative hearing, before such privileges may be permanently or finally terminated. Christhilf, supra The appellant bases his right of action on a claim of such denial of procedural due process.

It is the position of the appellant that the members of the Governing Board, who sat on the Joint Conference Committee, had, by their action of June 29, 1972, in accepting and adopting the recommendation of the Department of Surgery that the hospital privileges of the appellant be withdrawn, subject to the latter’s right of appeal thereon to the Joint Conference Committee, made a pre judgment of appellant’s case and were thereby disqualified to sit or vote as members of the Joint Conference Committee, as convened on October 2, under order of the District Court for the purpose of according the appellant an administrative hearing. It is this claim of disqualification which is the single complaint of the appellant to be resolved on this appeal,

The appellant is faced at the outset with the argument that his claim of disqualification is not timely. A claim of disqualifying bias or partiality on the part of a member of the judiciary or an administrative agency must be asserted promptly after knowledge of the alleged disqualification. Wyant v. Brennan (4th Cir. 1936) 85 F.2d 920, 921; Chafin v. United States (4th Cir. 1925) 5 F.2d 592, 595, cert.1 denied 269 U.S. 552, 46 S.Ct. 18, 70 L.Ed. 407; Coltrane v. Templeton (4th Cir. 1901) 106 F. 370, 376-377; International Paper Co. v. Federal Power Com’n (2nd Cir. 1971) 438 F.2d 1349, 1357, cert. denied 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56; Lucas v. United States (9th Cir. 1963) 325 F.2d 867, 869; Adams v. United States (5th Cir. 1962) 302 F.2d 307, 309; Gilligan, Will & Co. v. Securities and Exchange Com’n. (2d Cir. 1959) 267 F.2d 461, 468, cert. denied 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152; Kramer v. United States (9th Cir. 1948) 166 F.2d 515, 518; Laughlin v. United States (1945) 80 U.S.App.D.C. 101, 151 F.2d 281, 284, cert. denied 326 U.S. 777, 66 S.Ct. 265, 90 L.Ed. 470. In Coltrane this Court, quoting from the leading case of Moses v. Julian, 45 N.H. 52, said that, “[A]fter a trial has commenced, no attempt to recuse a judge will be listened to unless it is shown affirmatively that the party was not aware of the objection, and was in no fault in not knowing it” (106 F. at 377). The same principle was reiterated in Chafin, where the Court emphasized that “the just and reasonable rule would be that a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification * * *. To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts.” (5 F.2d at 595)

The factual basis for the appellant’s claim of disqualification in this case is not complex or involved; it involves one simple fact, i. e., the official participation of certain members of the Joint Conference Committee in the prior ex parte action of the Governing Board on June 29. It seems inconceivable that the appellant, a member of the medical staff of the Hospital and engaged in litigation with its trustees for a year and a half, did not know the identity of such trustees. And ten days before the administrative hearing began, he was furnished with all the pertinent records of the Hospital relevant to his case. These records would show the individual members of the Governing Board who participated in the action on June 29. In any event, he was fully aware at the commencement of the administrative hearing that five of the members of the Joint Committee were trustees and he had ample opportunity at that time to make any inquiries he wished about their involvement in the action of June 29. He actually did ask and receive permission, before the hearing began, to examine all members of the Committee on voir dire. The purpose of that examination, as expressed by appellant’s counsel, was to determine whether the members of the Committee either “as individuals or as a group”, could resolve “the facts of this case on a fair and impartial basis; to try to determine whether you have any prejudice or whether you have formed any conclusions in regard to the outcome of the case.” There was no restraint placed on the appellant in his interrogation of the members of the Committee. During the interrogation, the appellant made no inquiry of the trustee members of the Committee with reference to their participation in the action of the Governing Board on June 29, presumably because he already knew the answer. He contented himself with inquiring of all members of the Committee whether they had any prejudice or had formed “any conclusions about, let’s call it, the innocence or guilt of Dr. Duf-field.” When all the members, on oath, answered in the negative his question, the counsel for the appellant professed himself satisfied, stating that he had “no reason to suspect that any one of you would do anything other than fair and impartial.” With this statement, the hearing began, without any objection from the appellant.

Thereafter when the Hospital concluded its presentation of its case and the appellant began his presentation, it cannot be argued by the appellant that the ground of alleged disqualification of any members of the Committee was not clearly spelt out in the record. The appellant again raised no claim of bias or partiality at this point but proceeded with the presentation of his defense. It was not until December 6, almost three weeks after the taking of testimony in the proceedings had ended, that the appellant first raised his charge of disqualification. The claim came too late.

Apart from the tardiness of the appellant’s claim of disqualification, however, the record establishes clearly the want of substantive merit in such claim. There is no controversy over the proposition pressed by the appellant, and, often affirmed in the authorities, that due process demands a fair hearing before an impartial tribunal. Johnson v. Mississippi (1971) 403 U.S. 212, 216, 91 S.Ct. 1778, 29 L.Ed.2d 423. But the appellant construes this principle to proscribe completely any exposure on the part of the tribunal or its members to the factual issues of the proceeding prior to final decision. In pressing this construction, the appellant would disregard the fact, made consistently in the decisions, that the bias and familiarity with a case, which will disqualify, “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp. (1966) 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778; Craven v. United States (1st Cir. 1927) 22 F.2d 605, 607-608, cert. denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739; United States v. Beneke (D.C.Minn.1970) 317 F.Supp. 1326, 1327, aff. 449 F.2d 1259. If this were not true, any judge who ruled on a motion for a temporary restraining order in a civil action or on a motion for bail in a criminal case (rulings which to some extent require some knowledge of the facts and some opinion on the issues) would be disqualified from later hearing the case. See, United States v. Tropiano (2nd Cir. 1969) 418 F.2d 1069, 1077, cert. denied 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530. Or, to take another example: A trial court which, on appeal, has been reversed would be ineligible to try the same case again. See, Davis, Administrative Law Treatise, § 12.01, p. 144, vol. 2 (1958); Boyd v. County of Fresno (1960) 178 Cal.App.2d 443, 2 Cal.Rptr. 779, cert. denied 364 U. S. 893, 81 S.Ct. 224, 5 L.Ed.2d 188. That the rule is not in practice so applied was made clear in Federal Trade Com’n. v. Cenent Institute (1948) 333 U.S. 683, 703, 68 S.Ct. 793, 804, 92 L.Ed. 1010, reh. denied 334 U.S. 839, 68 S.Ct. 1492, 92 L.Ed. 1764, where the Court said:

“ * * * In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions both of law and fact.”

While the bulk of the cases stating this principle dealt with the disqualification of judges, the same rule applies to administrative bodies such as the Joint Committee in this case. National Labor Relations Board v. Donnelly Co., supra (330 U.S. at 236-237, 67 S.Ct. at 765) made this clear. There the Court put it:

“ * * * Certainly it is not the rule of judicial administration that, statutory requirements apart, * * * a judge is disqualified from sitting in a retrial because he was reversed on earlier rulings. We find no warrant for imposing upon administrative agencies a stiffer rule, whereby examiners would be disentitled to sit because they ruled strongly against a party in the first hearing.”

That this is true is evidenced by the many cases in which the Courts, reversing a decision of an administrative body, has remanded the proceedings to that body for another hearing, involving generally the same issues. And this conclusion has been reached specifically in cases involving, as here, the withdrawal of a physician’s hospital provi-leges. In Woodbury v. McKinnon (5th Cir. 1971) 447 F.2d 839, 844-845, it was held “that a hospital medical staff which stripped a physician of his surgical privileges was not disqualified to consider his qualifications merely because it had considered them on a previous occasion.” In that case, the Medical Staff on the Hospital “voted to withhold the privileges of Dr. Woodbury” subject to a subsequent hearing before it. Dr. Woodbury, claiming disqualification by reason of prior participation of the Medical Staff, demanded an administrative hearing before “an ad hoc committee of disinterested doctors, not affiliated with Barbour County Hospital.” (at 845, n. 1) In denying the motion and in affirming the qualification of the Medical Staff to conduct the administrative hearing, the Court said:

“ * * * The consideration on a previous occasion of the plaintiff’s qualifications would not demonstrate such bias as to constitute a denial of due process” (at 845).

Actually, American Cyanamid Company v. F.T.C. (6th Cir. 1966) 363 F.2d 757, on which the appellant relies for his contention, illustrates the distinction drawn in the decisions between opinions stemming from “an extrajudicial source” and those that are “learned from * * participation in the case.” The familiarity of the Commissioner in that case with the facts surrounding the Trade Commission complaint and his opinions as expressed thereon, which were found to disqualify him, resulted from his activities as counsel for a Congressional Committee and occurred before any complaint was filed by the Commission in the proceedings and before the Commissioner even became a member of the Commission. Such familiarity and opinion unquestionably had “an extrajudicial source”, unconnected with the Commissioner’s “participation in the case”, and was disqualifying. Moreover, it was plain on the record that the Commissioner, whose impartiality was attacked, had expressed a firm opinion on the issues during those “extrajudicial” proceedings.

The action taken in this case by the Governing Board on June 29 in receiving and approving conditionally the recommendation of the Department of Surgery against the renewal of the appellant’s hospital privileges, on the other hand — the action on which the appellant predicates his claim on bias — had no “extrajudicial source” but represented simply a step, largely a procedural one at that, in the administrative resolution of the proceedings involving the appellant. It was action taken on an ex parte recommendation. No evidence was taken by the Board at that stage. The decision taken was purely tentative and conditional; it became final only if the appellant voluntarily chose to accept the recommendation and not to contest it. It may be accurately described as an administrative step in bringing the issue to a head, much as the issuance of a show cause order in connection with an application for preliminary injunctive relief in judicial proceedings sets the stage for a valid hearing on the issues presented by such application. In the record, the appellant argued that, under the by-laws of the Hospital, the Governing Board should have taken no action, tentative and conditional though it may have been, until after the Joint Conference Committee had held its hearing. It is correct that the Governing Board could not act finally on the appellant’s application until the appellant had been given an opportunity to have an administrative hearing. But some procedure had to be adopted to give notice to the appellant of that right. That, it seems, was the purpose to be served by the action taken by the Board on June 29 and the resulting notice given the appellant. Perhaps some other formality may have been adopted, such as having the Department of Surgery transmit directly to the Joint Committee its recommendation, with the Committee notifying the appellant of his rights but we find no violation of appellant’s rights and no bias on the part of the Governing Board in the procedure actually adopted. The appellant was given an evidentairy hearing, a hearing which, in the words of the chairman of the Joint Committee, “treated as a de novo matter” the issues and where the members of the Committee, including the Board Members on the Committee, were “hearing this evidence for the first time as an original proposition.” He attended with counsel all the hearings. He was accorded the opportunity to confront and cross-examine all witnesses testifying against the renewal of his privileges. He testified in his own behalf and was given the right to call witnesses on his own behalf. Actually, the hearing was kept open for a period of ten days to enable him to call any additional witnesses on his behalf. The hearing was fair and the rights of the appellant were not prejudiced by any valid evidence of partiality on the part of the members of the Committee. The District Court accordingly properly granted the Hospital’s motion.

We find it unnecessary to consider the additional ground assigned by the District Court for dismissing the action. This additional ground falls under the heading of the “rule of necessity”. It is predicated in this case on the fact that the claim of the appellant, if sustained, would have disqualified all members of the Governing Board from acting and would have made it impossible for the Hospital to have validly terminated the appellant’s staff privileges, whatever the factual justification for that termination. Such a frustration of the power to act, it is held under this rule, in intolerable. “* * * [Disqualification will not be permitted to destroy the only tribunal with power in the premises.” Board of Medical Examiners v. Steward (1954) 203 Md. 574, 102 A.2d 248, 252. See, also, 2 Davis, Administrative Law Treatise, § 12.04, p. 162. As stated, however, we do not plant our decision on that ground.

We may add, too, that since, even under the only facts asserted by the appellant he did not set forth a valid basis for disqualification, the District Court did not err in denying appellant’s motion to amend.

Affirmed.

      . Tliis action was begun initially against tlie Memorial Hospital Association of Charleston. On January 1, 1972, while the action was pending, the Memorial Hospital Association of Charleston merged with two other hospitals to form the Charleston Area Medical Center, Inc.., which was then substituted as the party defendant and is one of the ap-pellees in this Court.

      . Incidentally, the Hospital asserts that it comxilied fully with this order and supplied tlie ax)x>ellaut’s counsel with the information directed to be furnished him but that the ap-X)ellant did not provide it with a list of the witnesses to be called to testify by him.

      . Two of the medical members, who had voted on the recommendation of the Surgery Department voluntarily recused themselves in this case and did not take part in the decision of the Joint Conference Committee. Accordingly, the Joint Committee which heard the appellant’s appeal consisted of eight members, five from the Governing Board and three from the Executive Committee of the medical staff.

      . Cf., Citta v. Delaware Valley Hospital (D.C.Pa.1970) 313 F.Supp. 301, 309 :
      “ * * * We thus consider it a sensible postulate, that before a surgeon’s privileges are permanently restricted on the basis of what he did in any given instance, he must be given an opportunity to defend and explain his actions.
      “Such a premise, however, does not compel the conclusion that a hearing must be given before the restrictions are imposed.” (Italics in opinion.)

      . The rule as to disqualification of a judge for bias or partiality is generally the same for administrative agencies. National Labor Relations Board v. Donnelly Co. (1947) 330 U.S. 219, 236-237, 67 S.Ct. 756, 91 L.Ed. 854.

      . Cf., Refior v. Lansing Drop Forge Co. (6tli Cir. 1942) 124 F.2d 440, 445, cert. den. 316 U.S. 671, 62 S.Ct. 1047, 86 L.Ed. 1746, where the Court said a litigant may not “after lie has knowledge of the alleged bias or prejudice of the trial judge * * * go forward” without asserting disqualification. See, also, Securities and Exchange Commission v. Bartlett (8th Cir. 1970) 422 F.2d 475, 480.

      . Indeed, the rule of disqualification has been extended in some instances to situations in which such factual familiarity finds its source in other judicial proceedings. Berger v. United States (1921) 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481; MacKay v. McAlexander (9th Cir. 1959) 268 F.2d 35, 39, cert. denied 362 U.S. 961, 80 S.Ct. 875, 4 L.Ed.2d 876.

      . See, N. L. R. B. v. Gissel Packing Co. (1969) 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, reh. denied 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123; United States ex rel. Checkman v. Laird (2d Cir. 1972) 469 F.2d 773; United States ex rel. Donham v. Resor (2d Cir. 1971) 436 F.2d 751.

      . This summarization of the ruling in Wood-bury is taken from the decision in Duke v. North Texas State University (5th Cir. 1973) 469 F.2d 829, 843, n. 3, cert. den. 412 U.S. 932, 93 S.Ct. 2760, 37 L.Ed.2d 160.

      . Cf., Federal Trade Com’n. v. Cement Institute, supra, where the Court said that “the fact that the Commission had entertained such views as. the result of its prior ex parte investigations did not necessarily mean that the minds of its members were irrevocably closed” (333 U.S. at 701, 68 S.Ct. at 803) so as to disqualify it from later disposing finally of the issues in the proceedings.

      . Cf., Securities and Exchange Com’n. v. R. A. Holman & Co. (1963) 116 U.S.App.D.C. 279, 323 F.2d 284, 286, cert. denied 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404.


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John CONLEY, Jr., Appellant.
    No. 74-1251.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Oct. 3, 1974.
    James A. Bell, St. Louis, Mo., for appellant.
    Thomas M. Vockrodt, Special Atty. Crim. Div., U. S. Dept, of Justice, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior ■Circuit Judge, HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

Appellant, John Conley, Jr., was convicted on one count of a two count indictment charging sales of heroin on July 21, 1973 and August 2, 1973. A third count charging conspiracy to sell heroin was dismissed by the government prior to his first trial in which a mistrial was declared because the jurors could not agree on a verdict.

Appellant seeks reversal upon the grounds that (1) he was twice placed in jeopardy for the same offense; (2) the system of jury selection deprived black defendants of a right to a fair and impartial trial; (3) there was error in the reasonable doubt instruction; (4) the court erred in failing to provide the jury with a written copy of the instructions; (5) the court erred in allowing a witness to refresh his memory from an examination of the notes of another witness; and (6) the court erred in refusing to declare a mistrial because of the repeated references by government witnesses about murders, particularly with respect to killings in St. Louis over narcotics.

We reverse and remand for new trial because of the prejudice created by the remarks of the government witnesses with respect to murders in connection with narcotics. Brief comment will be made with respect to the other errors charged.

Appellant was first tried on December 17 and 18, 1973, the cause being submitted to the jury at 8:00 p. m. on the 18th. Later that evening the jury was discharged upon failure to arrive at a verdict. Appellant contends that the trial court abused its discretion in aborting the trial without his consent and for no apparent reason after the jury had deliberated only one and one-half to two hours. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The government points out that without reaching the merits of appellant’s contention this court cannot consider the issue of double jeopardy because it was not raised until after trial. We agree that the claim is untimely. In Ferina v. United States, 340 F.2d 837, 838 (8th Cir. 1965), we observed that “ [constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded by the defendant at the time of trial will be regarded as waived. Kistner v. United States, 332 F.2d 978 (8th Cir. 1964); Harris v. United States, 237 F.2d 274 (8th Cir. 1956); Barker v. State of Ohio, 328 F.2d 582 (6th Cir. 1964).” Here the defense of former jeopardy is raised for the first time on appeal. It cannot now be considered.

Appellant, prior to his voir dire of the jury, moved “to strike the entire panel because it is not representative of the Negro race.” He pointed out to the court that there was only one black on the panel of twenty-eight called and the government could strike her peremptorily. After the jury was selected, appellant renewed his motion, calling the court’s attention to the fact that the black had been striken peremptorily by the government and he was forced to be tried by an all-white jury. He argued that under the jury selection system then in effect the number of blacks were so few that the government could exclude all blacks from the case.

In his argument before us appellant contends that the St. Louis Division of the Eastern District of Missouri contains several counties where there are no blacks, which results in a jury panel with so few blacks that they can be peremptorily challenged. “Therefore, the system is geared for the systematic exclusion of blacks from sitting on petit juries where blacks are defendants * * #

A similar challenge was made and rejected by our court in United States v. Pollard, 483 F.2d 929, 930 (8th Cir. 1973). In Pollard we noted that the Eastern District of Missouri, like all other districts in the Eighth Circuit, had adopted a plan for random jury selection which had been approved in accordance with the provisions of 28 U.S.C. § 1863. We further pointed out that under Swain v. State of Alabama, 380 U.S. 202, 221-224, 85 S.Ct. 824, 13 L.Ed. 2d 759 (1965), the striking of Negroes in a particular case is not sufficient to overcome the presumption that the prosecutor is using the government’s challenges to obtain a fair and impartial jury. However, “* * * the presumption protecting the prosecutor may be overcome, and a prima facie case of discrimination established, by proof of a prosecutor’s systematic exclusion of blacks from petit juries over an extended period of time.” Pollard at 930. There, as here, no such proof was offered. Appellant’s contention must therefore be rejected.

Appellant’s present challenge to the reasonable doubt instruction is rejected because if there was error, and we do not say there was, it was not properly called to the trial court’s attention before the jury retired to consider its verdict as required by Rule 30, F.R.Crim.P. See Friedman v. United States, 381 F.2d 155, 160-161 (8th Cir. 1967). Neither do we find there was plain error under Rule 52(b). F.R.Crim.P. See United States v. Atkins, 487 F.2d 257, 260 (8th Cir. 1973).

We find no abuse of discretion on the part of the trial court in refusing appellant’s request to submit the instructions to the jury in written form. Whether a written copy of the court’s charge should be submitted to the jury is within the sound discretion of the trial judge. United States v. Blane, 375 F.2d 249, 255 (6th Cir. 1967); Oertle v. United States, 370 F.2d 719, 728-729 (10th Cir. 1967). Here the trial lasted less than two days and the issues were not complicated.

Appellant urges that the trial court erred in permitting witness Stewart (informant) to refresh his memory concerning a portion of a conversation he had with appellant by referring to government agent Guilbeaux’s report. The propriety of permitting a witness to refresh his memory from a writing prepared by another largely lies within the sound discretion of the trial court. See United States v. Riccardi, 174 F.2d 883, 888-889 (3d Cir. 1949); McCormick, Law of Evidence, § 9 pp. 17-18 (2d Ed. 1972). No useful purpose is served in discussing further the issue here presented because it is not apt to reoccur in the same context.

Finally, appellant contends the trial court erred in refusing to declare a mistrial because of the repeated references by government witnesses to murders, particularly killings in St. Louis over narcotics. We agree.

The principal evidence offered by the government in support of its case against the defendant consisted of the testimony of undercover employee Stewart (informant) and Special Agent Guilbeaux of the Bureau of Narcotics and Dangerous Drugs.

Informant Stewart testified that after some preliminary negotiations with defendant he made the July 21 purchase of heroin from defendant at Regal Sports Lounge in St. Louis (Count I). The jury acquitted defendant on this count. Informant further testified that after a meeting with defendant on August 1 defendant set up a meeting the next day at Regal Sports Lounge where he indicated he would make a sale to informant and Special Agent Guilbeaux; August 2 informant and Special Agent Guilbeaux met defendant as arranged; however, defendant initially refused to make the heroin sale because of the alleged presence in the Lounge of an FBI agent but advised them to leave and return within twenty-five minutes; upon their return informant entered the Sports Lounge while Guilbeaux remained in the car, which was parked about twenty feet from the entrance; thereafter defendant and informant exited the Lounge and the transfer of heroin for $1300 took place in the doorway to the street; defendant and informant then proceeded to the parked automobile where they met with Guilbeaux; at defendant’s request Agent Guilbeaux wrote out his Ohio address and gave it to defendant. The next day when defendant was arrested, the Ohio address slip was found on his person. It was received in evidence.

Special Agent Guilbeaux corroborated informant Stewart’s testimony in all material respects. He further testified that he observed defendant pass the heroin packet to informant Stewart on August 2 (Count II). The jury convicted defendant on this count.

Defendant took the stand and denied selling heroin to Stewart or Guilbeaux and further stated that he never discussed narcotics with them at any time. He admitted knowing them socially and having seen them in the Sports Lounge on July 21 and August 2. He testified that he had been in the Missouri State Legislature eight years, was fifty years of age, and was a ward committeeman at the time of trial. He stated that he first met Stewart and Guilbeaux on election day, April 3, 1973.

Various witnesses were called by the defense who testified that defendant met with Stewart and Guilbeaux on July 20 and 21, 1973 at the Regal Sports Lounge but they heard no discussions concerning narcotics. Defendant also offered testimony as to his good character.

During the government’s direct examination of informant Stewart, he on two occasions made reference to conversations with defendant in which shootings and killings were mentioned. The trial court sustained defendant’s objections both times and on the first occasion directed the matter be stricken.

Later, during the government’s direct examination of Special Agent Guilbeaux concerning conversations he had with defendant, the following occurred:

Q What did you discuss?
A We discussed the killings that was going on in the City at that time.
MR. BELL: Well, Your Honor, I’m going to object to that. I don’t even think that is relevant and material; it has no bearing on any of the issues in this case.
THE COURT: Well, I will overrule the objection. Proceed.
Q (By Mr. Vockrodt) Did you discuss narcotics on that date?
A Yes, we did, about the killing all over narcotics and whatnot.

Counsel for the defendant, at the bench out of the hearing of the jury, then moved for mistrial because of the constant reference to killings in the city “because it implies the defendant had something to do with these killings.” The court indicated it agreed that the testimony was not relevant but denied the motion for mistrial. Counsel further requested that the jury be instructed to disregard it. No further action was taken by the court.

We are convinced that the court abused its discretion in not granting the mistrial. The testimony was highly prejudicial. It came from a special agent of the government after the court had on two prior occasions sustained objections to testimony by a previous government witness with reference to killings. The testimony can hardly be characterized as an inadvertent slip of the tongue. In this connection we also note that the transcript of the testimony of informant Stewart and Special Agent Guilbeaux at the previous trial of defendant, which resulted in a hung jury, fails to disclose any mention by either of these witnesses of murder or killings over narcotics being discussed with defendant.

The reference to killings over narcotics by the special agent was highly inflammatory. Repeated reference to discussions with defendant over this subject implies that he may have had something to do with the killings. Under all the circumstances we are satisfied that the injection of this testimony into the record was error and that the same was prejudicial.

We cannot say that the evidence of guilt was overwhelming or that it leaves us with no reasonable doubt that the jury would have reached the same result without hearing the inflammatory testimony. United States v. Allsup, 485 F.2d 287, 292 (8th Cir. 1973); cf. United States v. Olsen, 487 F.2d 77, 82-83 (8th Cir. 1973). Defendant’s first trial resulted in a hung jury. In the instant case the jury found the defendant not guilty of Count I but guilty of Count II. The evidence is sufficient to support a finding of guilt on Count II but we cannot say with fair assurance that the verdict was not substantially swayed by the inflammatory testimony. Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

Reversed and remanded for new trial.

      . At oral argument the attorney for the government stated it was 1ns recollection that the jury had deliberated about four hours and that when counsel were advised in chambers of the proposed discharge of the jury, no objection was made by counsel for either party. No record was made in connection with the mistrial.

      . Details of various conversations defendant had with informant Stewart and Special Agent Guilbeaux are omitted from our summary of the evidence because the sufficiency of the evidence is not attacked.


author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America Plaintiff-Appellee, v. Lester RAMSEY, Defendant-Appellant.
    No. 73-1580.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 11, 1974.
    Decided Aug 6, 1974.
    Rehearing Denied Oct. 2, 1974.

      Sam Adam, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Michael D. Groarle, Gary L. Starkman, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

This appeal presents the question whether the entire Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which establishes a statutory procedure for obtaining authority to engage in electronic eavesdropping, is unconstitutional “on its face.” Appellant also argues that the wiretap conducted in this case violated the portion of the authorizing order which directed the agents to minimize the interception of nonincriminating statements; and that the trial court erred by failing to grant immunity to a defense witness who exercised his privilege against self-incrimination.

There is no dispute about the fact that critical evidence was obtained by means of a court-authorized wiretap, or about the sufficiency of the evidence supporting the jury verdict finding appellant guilty of conspiring to buy and sell heroin. We treat appellant’s arguments in order.

I.

In his facial challenge to the constitutionality of Title III, appellant argues, first, that authorization to listen continuously to all conversations over a given telephone for 30 days is in the nature of a general search warrant forbidden by the Fourth Amendment and, second, that since the statute fails to require that notice be given to every person whose conversations have been overheard, it confers impermissible authority to conduct secret searches. These arguments have been considered and rejected by other circuits.

Appellant does not argue that the instant wiretap violated his own constitutional rights. At the outset, therefore, we must consider whether appellant has standing to challenge the statute on the ground that its application to other persons in situations different from that before us might be unconstitutional. Under traditional rules of constitutional adjudication, he is not entitled to raise such an objection. Moreover, the Supreme Court has recently admonished us to construe exceptions to the traditional rules narrowly. Thus, in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, the Court stated: “Application of the overbreadth doctrine is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.” 413 U.S. at 613, 93 S.Ct. at 2916. Similarly, it appears that traditional rules should normally apply to a challenge based on grounds of vagueness.

Nevertheless, in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, the Court allowed a facial challenge to the validity of a statute authorizing electronic eavesdropping. In support of its action, the Court said only the following:

“Since petitioner clearly has standing to challenge the statute, being indisputably affected by it, we need not consider either the sufficiency of the affidavits upon which the eavesdrop orders were based, or the standing of petitioner to attack the search and seizure made thereunder.”

388 U.S. at 55, 87 S.Ct. at 1882. While this sentence adequately explains why petitioner had standing under Article III of the Constitution, see, e. g., Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, it does not explain why petitioner was entitled to bypass the question of the constitutionality of the statute as applied. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Notwithstanding the critical comments on the standing issue found in the separate opinions of Mr. Justice Stewart, Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice White, the majority neither identified the basis for its exception to traditional practice, nor indicated whether a litigant may challenge a statute authorizing electronic eavesdropping no matter how tangential the statute’s impact may be on his own constitutional rights.

The disposition of the standing issue in Berger would appear to be a departure from accepted tradition, and somewhat inconsistent with Broadrick. Nevertheless, since Broadrick did not specifically disapprove of Berger, and since we are not sure Berger can fairly be distinguished from the present case, we conclude that it is our duty to respect it as a viable precedent on the question of standing and to entertain appellant’s challenge.

In a sense, deciding to entertain a facial challenge to a statute such as Title III is more easily said than done. For this statute merely provides safeguards for a procedure which might legitimately be undertaken without any statutory authorization at all. See Katz v. United States, 389 U.S. 347, 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576. Presumably, a declaration of facial invalidity would mean that even though the application of the statute in this and in comparable cases is permissible, there is a range of applications permitted by the statute which exceeds constitutional limitations. But what is the appropriate range? What, in other words, is the test for declaring an authorizing statute facially unconstitutional ?

If we were to conclude, as apparently Judge Aldisert does in his careful op in-ion in United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), that compliance with this statute will make it virtually impossible to violate the Fourth Amendment rights of any citizen, then surely the statute must be upheld. On the other hand, if we should conclude that there is a significant possibility that district judges will from time to time grant overly broad intercept authority without departing from any of the statutory safeguards, does it follow, as Judge Lord reasoned in Whitaker, that the entire statute must fall? Or are we to engage in a form of balancing, attempting to weigh the probable number of impermissible applications of the statute against the number of cases in which it will be applied constitutionally, and then express an empirical judgment about its facial validity?

We find none of the above approaches acceptable and suggest, somewhat tentatively, a slightly different formulation. Realistically, we think we must assume with Judge Lord that from time to time the statute will be applied unconstitutionally in specific cases and, indeed, that over the years the number of such applications may be significant. On the other hand, now that judges have the benefit of the opinion in Berger, reinforced by the statutory admonitions set forth in some detail after careful consideration of the implications of Berger by Congress, we think it is proper to presume that the statute will generally be applied in a constitutional manner.

In Berger the Supreme Court could properly have regarded the New York statute as giving rise to a quite different presumption — one under which it might reasonably have been presumed that the normal administration of the Act would routinely lead to the entry of authorizations for 60-day continuous wiretaps. Such blanket authority to issue general warrants may be considered offensive to the Fourth Amendment without undermining the normal presumption of constitutionality to which we believe this carefully conceived Act of Congress is entitled.

We cannot say that the normal application of Title III will ordinarily lead to results condemned by the Fourth Amendment. Moreover, we are conscious that, even if the statute is susceptible of unconstitutional application, it does contain additional protections, not necessarily mandated by the Constitution, which would be forfeited by a holding of facial invalidity.

Accordingly, without further enlarging upon the constitutional discussion in the many other judicial opinions analyzing Title III, we hold that it is not unconstitutional on its face.

II.

The statute provides that every order authorizing an intercept shall contain a requirement that the authorization be executed as soon as practicable and “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” In this case, the order authorizing the interception contained a provision directing, in the language of the statute, that the interception of such communications be minimized. Appellant claims that, if he had been accorded a hearing on the issue in the district court, he might have established that the government violated its duty to minimize the interception of innocent conversations. He therefore argues that the district court erred in failing to hold such a hearing.

We are not at all sure that appellant made a sufficient factual showing to require the Court to hold a hearing to determine whether the government violated the minimization requirement in the order. But we assume arguendo that such a breach occurred. On that assumption we must decide whether appellant has standing to complain. The Second Circuit has held that only a subscriber to a telephone has such standing. United States v. Poeta, 455 F.2d 117, 122 (1972). A more liberal interpretation of the statutory purpose would suggest that Congress also intended to protect the privacy interests of members of the subscriber’s family, possibly other regular users of the telephone, and conceivably any casual caller engaging in innocent conversation. But appellant fits none of these descriptions. He was a party to three long distance conversations with John Haygood, the subscriber, each of which related to the heroin transactions which were the specific target of the intercept order. Accordingly, we conclude that appellant’s rights were not infringed even if the government failed to carry out its obligation to minimize. Cf. United States v. Cox, 462 F.2d 1293, 1301-1302.

III.

Finally, there is no merit to the argument that a defendant has a constitutional right to have immunity conferred upon a defense witness who exercises his privilege against self-incrimination. The only support for appellant’s argument is found in a footnote to an opinion holding that Congress has not delegated unlimited power to the judiciary to grant immunity. Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531, 534 (1966). The footnote which suggests that a serious problem might exist if, in the same case, the government obtained critically favorable testimony by granting immunity but refused the same assistance to a defendant, is inapplicable because in the case before us the prosecution did not secure any of its evidence by means of an immunity grant.

The judgment is

Affirmed.

      . Title III of the Omnibus Crime Control and Safe Streets Act of 1968 entitled “Wiretapping and Electronic Surveillance” is found at 82 Stat. 211. In § 801 of that Act, Congress set forth its findings supporting the legislation; § 802 enacts a new Chapter 119 of the Criminal Code entitled “Wire Interception and Interception of Oral Communications.” See 18 U.S.C. §§ 2510-2520. Section 803 amended § 605 of the Communications Act of 1934, 47 U.S.C. § 605, to remove the complete prohibition against interception of telephonic communications without the consent of either party. Section 804 established a National, Commission for the review of federal and state laws relating to wiretapping and electronic surveillance.

      . On May 4, 1970, telephone intercepts and pen registers were installed on two telephones in Chicago for which John Haygood, 'a co-indictee, was the subscriber. Three conversations between Haygood and appellant, who lived in Detroit, were overheard and introduced at trial; the jury may have inferred that they involved negotiations for the sale of heroin. The government also introduced evidence, apparently obtained at least in part in consequence of the wiretap, of surveillance of a journey made by Ann Ilaygood (John Ilaygood’s wife) fnwn Chicago to Ramsey’s Detroit residence, and back to Chicago, which the jury might reasonably have concluded was made for the purpose of securing a quantity of heroin, which Ilay-good later resold.

      . The charge was brought under 21 U.S.C. § 174, repealed Act of Oct. 27, 1970, Pub.L. No.91-513, Title III, § 1101(a)(2), 84 Stat. 1291.

      . Appellant also advanced a contention which is now foreclosed by the Supreme Court decision in United States v. Chavez, 410 U.S. 562, 570-575, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Appellant suggested that the authorization for the instant eavesdropping might have been obtained illegally because of the alleged forgery of the signature of Assistant Attorney General Will Wilson on the application for the intercept order and requested a remand for an evidentiary hearing on the issue. Since the record contains an affidavit of former Attorney General John Mitchell stating that he personally initialed a memorandum approving the instant wiretap, the statuory requirements were satisfied. Cf. United States v. Roberts, 477 F.2d 57, 59 (7th Cir. 1973).

      . Appellant also suggests that the very existence of wiretapping authority has a chilling effect on free speech and, therefore, the statute violates the First Amendment. See Lopez v. United States, 373 U.S. 427, 450, 83 S.Ct. 1381, 10 L.Ed.2d 462 (Brennan, J., dissenting). If this argument were valid, no statutory authorization of electronic eavesdropping would be constitutional. Plainly that result would be inconsistent with the Supreme Court’s analysis in Katz v. United States, 389 U.S. 347, see especially pages 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576.

      . See United States v. Cafero, 473 F.2d 489, 495-497, 498-500 (3rd Cir. 1973); United States v. Tortorello, 480 F.2d 764, 773-774 (2d Cir. 1973). Although the primary claims in the two Cox cases were somewhat different, it is fair to say that the Eighth and Tenth Circuits have also implicitly rejected these arguments. See United States v. Cox, 449 F.2d 679, 685, 687 (10th Cir. 1971); United States v. Cox, 462 F.2d 1293, 1303-1304 (8th Cir. 1972).

      . The rationale of Katz v. United States, supra, n. 5, establishes that a wiretap is not prohibited by the Constitution merely because there was no specific statutory authority for its issuance. Appellant does not contest that, in this case, there was compliance with the requirements of the Fourth Amendment. The application for the order authorizing the wiretap — the constitutional equivalent of an application for a search warrant — demonstrated the existence of adequate probable cause; the order itself satisfied the particularity requirements of the Fourth Amendment; and the relevant inter-ce) >ted conversations were among those specifically authorized to be overheard. Appellant does not argue to the contrary. There was no invasion of appellant’s right “to be secure . . . against unreasonable searches and seizures. . . .”

      . The Second Circuit considered the standing issue in United States v. Tortorello, supra, n. 6. Its resolution of the issue was predicated on the fact that § 605 of the Federal Communications Act of 1934 (47 U.S.C. § 605) had been amended by § 803 of Title III. Prior to that amendment, the wiretap before them would have been unlawful and the evidence obtained thereby inadmissible. See Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126. Since the evidence which led to appellant’s conviction was rendered admissible by § 803 of Title III, the Court held that he had standing to attack tlie constitutionality of the entire Title on its face. See 480 F.2d at 772.
      We cannot accept this reasoning. Title XI of the Crime Control Act consists in its entirety of a separability provision, which expresses Congress’ intent to save the Act from a determination of total invalidity. While there is authority for the view that such a provision cannot be completely dis-positive, see Carter v. Carter Coal Co., 298 U.S. 238, 312-313, 56 S.Ct. 855, 80 L.Ed. 1160, ,to grant standing upon the Second Circuit’s rationale, it would be necessary to hold that the separability provision does not apply to the various parts of Title III. We believe such a holding would be unwarranted. The amendment to the Federal Communications Act is contained in a separate section which does not constitute a part of the newly enacted Chapter 119 of the Criminal Code; that chapter contains the provisions challenged by appellant as unconstitutional. More fundamentally, even though the amendment to the Federal Communications Act was adopted as a part of a comprehensive piece of legislation substituting a lesser prohibition against wiretapping for the previous total prohibition, invalidation of Chapter 119 would not require that the amendment also be stricken down. For surely there is nothing in the Constitution that would prevent Congress from repealing every statutory prohibition against electronic eavesdropping and leaving only the Constitution itself as a safeguard against its abuse.

      . The classic statement of the requirements imposed by the judiciary on itself before it will undertake the weighty function of constitutional adjudication is probably Mr. Justice Brandéis’ concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688. The fifth criterion enunciated therein is that “The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.” Id. at 347, 56 S.Ct. at 483.
      This principle ordinarily applies in Fourth Amendment cases. For although the enforcement of the exclusionary rule testifies to the importance of vindicating rights j)ro-tected by the Fourth Amendment, it is generally accepted that only a person whose own interest in privacy or property has been invaded may invoke the benefit of that rule. Cf. Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176.

      . The Court described traditional doctrine as follows:
      “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that, statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e. g., Austin v. Aldermen, 7 Wall. 694, 698-699 [19 L.Ed. 224] (1869); Supervisors v. Stanley, 105 U.S. 305, 311-315 [26 L.Ed. 1044] (1881); Hatch v. Reardon, 204 U.S. 152, 160-161 [27 S.Ct. 188, 190-191, 51 L.Ed. 415] (1907); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220 [33 S.Ct. 40, 41, 57 L.Ed. 1931 (1912); United States v. Wurzbach [280 U.S. 396], at 399 [50 S.Ct. 167, at 169, 74 L.Ed. 508]; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 [57 S.Ct. 868, 874, 81 L.Ed. 1245] (1937); United States v. Raines, 362 U.S. 17 [80 S.Ct. 519, 4 L.Ed.2d 524] (1960). A closely related principle is that constitutional rights are personal and may not bo asserted vicariously. See McGowan v. Maryland, 366 U.S. 420, 429-430 [81 S.Ct. 1101, 1106-1107, 6 L.Ed.2d 393] (1961). These principles rest, on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Xation’s laws.” 413 U.S. at 610-611, 93 S.Ct. at 2915.

      . “To be sure there are statutes that by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes.” Smith v. Gogren, 415 U.S. 566, 577, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). Since the Court prefaces the quoted language by defining a “hard core violator” as one “to whom the statute was not vague, whatever its implications for those engaged in different conduct,” we infer that the Court might require a litigant objecting to the invalidity of a statute on account of vagueness to allege that the statute was vague as to his conduct.

      . “The issue before us, as Mr. Justice White says, is ‘whether this search complied with Fourth Amendment standards.’ For me that issue is an extremely close one in the circumstances of this case. It certainly cannot be resolved by incantation of ritual phrases like ‘general warrant.’ Its resolution involves ‘the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not?’ ” 388 U.S. at 68-69, 87 S.Ct. at 1888 (concurring opinion).

      . “I agree with my Brother White that instead of looking for technical defects in the language of the New York statute, the Court should examine the actual circumstances of its application in this case to determine whether petitioner’s rights have here been violated. That to me seems to be the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not? . . . Certainly a search and seizure may comply with the Fourth Amendment even in the absence of an authorizing statute which embodies the Amendment’s requirements. Osborn v. United States, 385 U.S. 323 [87 S.Ct. 429, 17 L.Ed.2d 394], upon which the Court so heavily relies, is a good example of a case where the Court sustained the tape recording of a conversation by examining the particular circumstances surrounding it, even though no federal statute prescribed the precautions taken by the district judges there.” 388 U.S. at 82-83, 87 S.Ct. at 1895 (dissenting opinion).

      . “The Court declares, without further explanation, that since petitioner , was ‘affected’ by § 813-a, he may challenge its validity on its face. Nothing in the cases of this Court supports this wholly ambiguous standard; the Court until now has, in recognition of the intense difficulties so wide a rule might create for the orderly adjudication of constitutional issues, limited the situations in which state statutes may be challenged on their face. There is no reason here, apart from the momentary conveniences of this case, to abandon those limitations: none of the circumstances which have before properly been thought to warrant challenges of statutes on their face is present, cf. Thornhill v. Alabama, 310 U.S. 88, 98 [60 S.Ct. 736, 742, 84 L.Ed. 1093], and no justification for additional exceptions has been offered. See generally United States v. National Dairy Products Corp., 372 U.S. 29, 36 [83 S.Ct. 594, 599, 9 L.Ed.2d 561]; Aptheker v. Secretary of State, 378 U.S. 500, 521 [84 S.Ct. 1659, 1671, 12 L.Ed.2d 992] (dissenting opinion). Petitioner’s rights, and those of others similarly situated, can be fully vindicated through the adjudication of the consistency with the Fourteenth Amendment of each eavesdropping order.” 388 U.S. at 90-91, 87 S.Ct. at 1899 (dissenting opinion).

      . “This case boils down, therefore, to the question of whether § 813-a was constitutionally applied in this case.” 388 U.S. at 108, 87 S.Ct. 1909.
      “The question here is whether this search complied with Fourth Amendment standards.” Id. at 111, 87 S.Ct. 1911 (dissenting opinion).

      . One commentator suggested the following rationale:
      “The majority’s sole justification for construing the statute on its face rather than as applied to the defendant is its hald statement that ‘petitioner clearly has standing to challenge the statute, being indisputably affected by it . . . . ’ Previously the Court had judged statutes on their face in cases involving freedom of expression, where the very existence of the statute can inhibit the communication of ideas. But in other areas the Court has usually dealt with a law as applied in order to avoid deciding constitutional issues unnecessarily and because dealing in abstractions often leads to ‘sterile conclusions unrelated to actualities.’ Indeed, the Berger opinion itself is often too general to give specific, guidance to those who now seek to draft a constitutional eavesdropping statute. The majority also fails to give any guidance on questions raised by the facts of the case and discussed by the dissents, such as who has standing to challenge the legality of an eavesdrop, what constitutes probable cause for an eavesdrop order, and what rules govern the use of the fruits of an illegal eavesdrop.
      “It might be argued in support of the Court’s action, however, that eavesdropping itself is an unconstitutional restraint on speech, creating an atmosphere in which individuals are reluctant to speak freely even in private. Although the case was decided on fourth rather than first amendment grounds, this ‘penumbral’ influence of the first amendment could provide a basis for judging the statute on' its face. Further, an overbroad eavesdrop statute would seem to have the same ‘chilling effect’ on privacy that an overbroad picketing statute has on speech: the very knowledge that the police are authorized to eavesdrop without adequate judicial supervision will impair the value of the home or office as a place of refuge even if the police do not abuse their power. In addition, just as in free speech cases it is by no means certain that all important issues would be litigated if a case-by-case approach were required, the secrecy of eavesdrops makes it unlikely that issues arising out of unproductive eavesdrops would ever reach court.” The Supreme Court, 1966 Term, 81 Harv.L.Rev. 69, 188 (1967) (Footnotes omitted).

      . In Berger, unlike the present case, the petitioner advanced a strong claim of unconstitutional application as to himself. Indeed, the unconstitutionality of the wiretap at issue was the basis for Mr. Justice Stewart’s concurrence in the result. The application of the New York statute in that case had permitted a recording device to be installed in an attorney’s office for a period of 60 days. In the face of such a strong claim of impermissible application — one that either constituted the use of a general warrant forbidden by the Fourth Amendment, as the majority held, or at the very least closely approached the outer limits of the range in which a statute authorizing electronic eavesdropping might be applied constitutionally— the Court could with more legitimacy express an opinion on the validity of the entire statutory scheme before it than if the particular litigant before it had no arguable basis for claiming that his own constitutional rights had been impaired but was merely positing quite different hypothetical situations in which abuses might conceivably occur.

      . The reasons why hypothetical adjudication of constitutional issues is undesirable are applicable to a “facial” analysis of this statute. For, in order to meet appellant’s principal argument that authorization of electronic. eavesdropping for a continuous period of 30 days is comparable to a general warrant and not constitutionally distinguishable from the 60-day authorization condemned in Berger, see United States v. Whitaker, 343 F.Supp. 358, 365-366 (E.D.Pa.1972), rev’d, 474 F.2d 1246 (3rd Cir. 1973), we would be forced either (a) to decide whether validity must rest on the difference between 60 days and 30 days, (b) attempt to evaluate the efficacy of the provisions for “automatic” termination of authorizations under a variety of conceivable circumstances, or (c) attempt to predict the frequency with which judges may impose a time limit less than the maximum of 30 days permitted on the basis of a single showing of .probable cause.

      . The Supreme Court in Berger did not explicitly rely upon the strength of petitioner’s own Fourth Amendment claim in permitting challenge to the Xew York statute on its face.

      . Ordinarily, cases in which facial constitutional adjudication has been considered appropriate have involved criminal statutes, or at least disciplinary sanctions. In such cases, the consequence of a judicial determination of facial unconstitutionality is unambiguous. Similarly, if Congress had no power to authorize the practices described in the legislation, a ruling that the statute is facially invalid would be understandable. See, ,e. g., Schechter Poultry Corp. v. United States, 295 U.S. 495, 550, 55 S.Ct. 837, 79 L.Ed. 1570. But the analysis in Katz makes it clear that this is not such a case. It is therefore difficult to know precisely what a declaration that this statute is facially unconstitutional would mean.

      . We believe the crux of Judge Lord’s opinion is found in the following passage: “If a judge exercised certain discretionary powers which the Act gives him, the order may not violate the Fourth Amendment. The difficulty, though, is precisely that those powers are discretionary and not mandated. It follows that the Act does not command a constitutional order; it permits an uneonstltu-tional one.” United States v. Whitaker, supra n. 18, 343 F.Supp. at 363.

      . The majority in Berger did not specifically announce the standard that they employed. The explanation may lie in the fact that the opinion, when announced, was subject to the interpretation that the Court intended to forbid all wiretapping of telephones. In his dissent in Katz v. United States the following Term, Mr. Justice Black observed:
      “. . . [TJoday’s opinion differs sharply from Berger v. New York, 388 U.S. 41 [87 S.Ct. 1873, 18 L.Ed.2d 1040], decided last Term, which held void on its face a XTew York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court’s opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding.”
      389 U.S. at 364, 88 S.Ct. at 518. See also Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 S.Ct.Rev. 133, 143: “In Katz itself the Court proceeded to make clear that, contrary to the implications of its decision in Berger v. New York, electronic surveillance under limited conditions could be authorized by a warrant.” (Footnotes omitted.) That such an interpretation of the opinion was reasonable is bolstered by the fact the petitioner specifically argued such a contention to the Supreme Court. Point I of his Brief was :
      “A. Except perhaps for situations of supreme public necessity involving the physical safety of the nation or of a particular populated community or vital public installation, and even then only for purposes of preventive security action by responsible governmental agencies at the highest level rather than for the obtaining of prosecu-torial evidence, and even in sucli supreme emergency situations only when the action is taken under federal rather than state authority, no conceivable system of judicially permissive trespassory or other physically intrusional electronic eavesdropping — including ‘electronically’ or ‘acoustically’ intrusional methods involving no ‘tangible’ physical trespass or intrusion in the conventional senses understood by persons who are not trained physicists — can be constitutional under the Fourth, Fifth, Ninth and Fourteenth Amendments.”
      Brief for Petitioner at 15.

      . Perhaps the lynchpin of the majority’s analysis in Berger appears in the paragraph in 388 U.S. at 58-60, 87 S.Ct. 1873. We note that the procedural laxity therein condemned has been avoided in Title III.

      . The mere fact that the statute does not require notice to be given to everyone whose conversations have been overheard does not render it unconstitutional. Unlike the New York statute condemned in Berger, see 388 U.S. at 60, 87 S.Ct. 1873, § 2518(8) (d) requires that those individuals named in the order be given notice within 90 days after its termination. This is consistent with ordinary Fourth Amendment practice under which notice is given to those whose premises are searched. See Rule 41(d), Fed.R.Crim.P.

      . We quote the entire text of § 2518(5), supplying emphasis to the portion relevant to appellant’s claim:
      “No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.”

      . In United States v. Kahn, 415 U.S. 143, 154, 94 S.Ct. 977, 983, 39 L.Ed.2d 225 (1974), the Court described this requirement as a duty “to execute the warrant in such a manner as to minimize the interception of any innocent conversations.” (Emphasis added.) Without the guidance we might have had some uncertainty as to the meaning of the words “communications not otherwise subject to interception” because they might have been interpreted literally to encompass noninnocent conversations as well, inasmuch as even a noninnocent conversation would not be subject to interception other than pursuant to a valid order. Such a literal reading, however, would not effectuate any identifiable legislative objective. We assume, therefore, that the agents were obligated to intercept as few “innocent conversations” as possible consistent with their primary mission of obtaining evidence of the criminal activity described in the warrant. When their mission is kept in mind, the term “innocent” may perhaps be further limited to those which are not relevant in the sense that they are not likely to lead to the discovery of any searched-for evidence. The nature of the duty to minimize may vary from case to case and, therefore, conceivably in some intercept orders the trial judge should do more than merely parrot the language of a somewhat ambiguous statutory provision.

      . Since the right Congress sought to protect is a right to privacy, this analysis is not inconsistent with Mr. Justice Harlan’s dissenting opinion in Berger, 388 U.S. at 101-104, 87 S.Ct. 1873.

      . The witness Harden anticipated leniency but received no grant of immunity.