author: LEVENTHAL, Circuit Judge: FAHY, Senior Circuit Judge, ROBB, Circuit Judge,

text:
    Lillian B. WATERS et al., Appellants, v. Peter G. PETERSON et al.
    No. 72-1320.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 29, 1973.
    Decided Oct. 12, 1973.

      Rodney F. Page, Washington, D. C., with whom David J. Berman, Washington, D. C., was on the brief, for appellants.
    John J. Mulrooney, Asst. U. S. Atty. with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and J. Michael McGarry III, Asst. U. S. Attys., were on the brief, for appellee.
    Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.
   LEVENTHAL, Circuit Judge:

This appeal from the denial by the district court, Waters v. Stans, 341 F. Supp. 441 (D.D.C.1972), of a prayer for declaratory and injunctive relief, claims that First and Fifth Amendment rights were violated by a five day suspension of appellants by the Bureau of the Census for violation of a regulation prohibiting “conduct which violates common decency, or morality or use of improper or obscene language.”

Appellants, Lillian B. Waters and Joseph R. Cooper, Jr., were leaders of a “Task Force” organized by certain black employees at the Bureau of the Census in Suitland, Maryland, to protest alleged racial discrimination in hiring and promotion practices at the Bureau. A main focus of the protest activity was the public cafeteria utilized by many Bureau employees in the basement of Federal Building #3, in a complex of federal buildings in Suitland. On several occasions, members of the “Task Force”, including appellants, protested during lunch-time hours, either at the back of the cafeteria near the primary entrance, or by parading through the main aisles and cross aisles, holding signs lettered with slogans. One of these read “Pigs Off Census.” These protests continued for several months, and during this time, prior to July 16, 1971, no Bureau official ever advised or warned any member of the Task Force against this cafeteria activity, or sought any reprisal.

On July 16, 1971, between 12:30 and 1:00 p. m., approximately six employees, including appellants, were holding signs near the entrance to the cafeteria. Among the reasons for the picketing was the alleged discriminatory discharge of Mrs. Denise Gray, attributed by the demonstrators to the actions of two white female supervisors in the Bureau, Mrs. Stockwell and Mrs. Gans.

While the peaceful picketing was in progress, these two supervisors entered the cafeteria, bought their lunches and sat down at a table. Some time later, appellants walked down the main aisle to that table, and stood in close physical proximity to the two supervisors. They then held aloft a large sign (two feet by four feet) which read “PIGS OFF CENSUS.” The sign was seen by a large number of the patrons of the cafeteria, and caused a stir. After five minutes, the supervisors stopped eating their lunch and left the cafeteria, visibly upset.

On July 26, 1971, appellants were.informed by letter of their proposed suspension for a period of five working days for “misconduct which violates common decency in employee relations.” After preliminary proceedings in the Bureau, appellants were notified of their suspension. Their action, filed October 1, 1971, in the District Court sought a declaratory judgment and injunctive relief. Judge Gesell issued a temporary restraining order, directing that a hearing be held to review the administrative action taken. An appeals examiner was designated by the Bureau. He conducted a hearing on October 19, and on November 11 rendered his decision supporting the decision to suspend. On cross motions for summary judgment, the District Court, by memorandum and order of February 17, 1972, dismissed appellants’ complaint. The Bureau agreed to stay the suspensions pending the appeal.

I. CLAIM THAT ACTIVITY IS PROTECTED BY THE FIRST AMENDMENT

Appellants first claim that their activity was protected speech under the First Amendment. For purposes of analysis, Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L.Ed.2d 572 (1969), we separate out two features of the activity involved: one, their use of the epithet “Pigs Off Census,” and the other, the appellants’ conduct, their standing close to the supervisors at the table during their demonstration.

A. The Words

Judge Gesell found that “what occurred in this instance was a pointed verbal assault on fellow employees. .”, and we take this to be based on the use of “Pigs Off Census” as a slogan on the sign held up at the table of the two supervisors, since there was no other verbal activity by appellants during their demonstration.

The District Court’s “verbal assault” concept ahs a reference point in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), which sustained a conviction for the use of offensive language to a person lawfully in the street, on the ground that the New Hampshire Supreme Court had sharply limited the statutory language “offensive, derisive, or annoying word” to “fighting” words. See Gooding v. Wilson, 405 U.S. 518, 522-523, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). So-called “fighting words” are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971) (Harlan, J.).

For purposes of First Amendment protection, we cannot equate the “Pigs Off Census” sign, as used in the circumstances of this case, with “fighting words”. This slogan had been used previously in the lunchroom, without any indication that it might provoke a violent reaction on the part of other employees. The fact that words may offend the sensibility of some is not determinative. As Justice Harlan stated in Cohen, supra, at 21, 91 S.Ct. at 1786,

The ability of the government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.

In some cases, a different result can follow from directing the words at particular individuals as compared with a general audience, since the potential for provocation in the former event might be greater. But the words in this case had acquired a certain currency in lunchroom demonstrations and since the two supervisors were “embarrassed” rather than subject to violent reaction, this is not such a case. See Lewis v. City of New Orleans, supra note 5, vacating and remanding a conviction where a police officer, while in the performance of his duty, was called “g-d--. m-----f------police”.

B. The Conduct

A different issue altogether is raised in evaluating the “conduct” of appellants at the table of the supervisors. Those who communicate ideas by conduct, such as picketing, are not afforded the same kind of freedom as those engaged in pure speech. Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). Peaceful picketing in a location open generally to the public is protected by the First Amendment, absent other factors involving the purpose or manner of the picketing, Amalgamated Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308, 313, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). The picketing involved in the actions of appellants on July 16, 1971, however, carried with it a strong element of physical intimidation which brought it outside First Amendment protection. As Justice Marshall stated in Logan Valley Plaza, supra, at 321, 88 S.Ct. at 1609.:

Thus 'it has been held that persons desiring to parade along city streets may be required to secure a permit in order that municipal authorities be able to limit the amount of interference with the use of the sidewalks by other members of the public by regulating the time, place, and manner of the parade, [citations omitted].

Such “time, place, manner” restrictions on picketing fulfill a reasonable and significant function. It cannot seriously be claimed that society has no legitimate interest in restricting the kind of expression manifested or accompanied by acts with a significant potential for physical intimidation. See H. Kalven, Jr., The Concept of the Public Forum, 1965 Supreme Court Rev. 1, 23 (1965).

One must distinguish between embarrassment and fear in the viewer, between content of speech and form of expression, or accompanying behavior. The point can be sharpened by supposing that appellants had engaged in picketing in an orderly fashion at the bank of the lunchroom — a place and time not prohibited at the Bureau — but instead of carrying general signs “Pigs Off Census” had carried signs which identified Mrs. Stockwell and Mrs. Gans as persons responsible for “racist” or discriminatory behavior. Those two ladies might well have been upset by specific references to them, and possible ridicule, but the assertion that displaying the signs warranted suspension would raise difficult First Amendment issues. Certainly the government is in no position to say generally that it will allow free speech in a location but only of the kind it finds welcome or laudatory. Women Strike for Peace, II supra, 472 F.2d at 1295-1296.

What makes this case different is that the conduct approached intimidation by being carried on at the table where the ladies were seated to eat the lunch they had bought. The difficulty, however, with the case before us is that the Census officials were not sensitive to First Amendment considerations, and did not carefully separate the speech and conduct components in analyzing the situation.

C. Possibility that Bureau suspension was based essentially on content of speech, rather than solely on “manner of expression” and intimidating conduct.

The complaint lodged against appellants (JA at 20), and the proceedings within the Department failed to make clear just which element of the events violated the regulation, and it is thus arguable that the suspension is attributable to the words of the sign as well as to pure conduct. The regulation in terms prohibits “improper language” as well as conduct. The Bureau’s statement in response to questions of the appellants as to the nature of the complaint was as follows (JA at 35):

The mere display of the sign is, in and of itself, not the issue in your case. Rather, the issue is whether your conduct, considering the content of the sign, the manner in which you displayed it, and the circumstances in which you displayed it, and the effect of your displaying it, amounts to misconduct which violates common decency in employee relations, (emphasis added) .

However, we cannot decide the case upon this formulation of the Bureau’s position, but must rather look to the subsequent proceeding at which this position and the underlying facts were ventilated, the evidentiary hearing held at the direction of the District Court, and on which the appeals examiner focused in making his decision. The examiner’s “Findings” stated the bare facts of appellants’ conduct (Fdgs. 14-17) and then set forth the following:

18. The incident caused a silence to fall in the area immediately surrounding Sockwell’s and Gans’ table while spectators stared and strained to see what was happening. (Tr. 30, 52, 53, 57, 88).
19. Some of the spectators who were upset, shocked and surprised believed the incident humiliated Sock-well and Gans. (Tr. 34, 89, 98, 101).
20. The incident disrupted and prevented Sockwell and Gans from enjoying their lunch and resulted in their leaving their table and the cafeteria because of fear, embarrassment and humiliation. Sockwell and Gans statements, Exhs. X-l, X-2; Tr. 30, 32, 33, 35, 45, 48, 49, 51, 54).

The analysis of the appeals examiner is in his “Conclusion.” Therein he states that “pig” has derogatory slang usage, and sets forth the following key point (J.A. at 82):

In any event, “PIG” is clearly a truculent epithet and it is understandable from this record how anyone who is anticipating a quiet lunch and suddenly, under unprecedented circumstances, becomes the target of an op-probious sign, could become apprehensive and upset.

Most significantly, the District Judge viewed the case as one of “verbal assault.”

Although one finding of the appeals examiner used the word “fear” (Finding 20), and his Conclusion used the word “apprehensive,” it is striking that neither the findings nor the analysis focus on the nature of the conduct, but are replete with material on the “humiliation” aspect of the incident. It is not easy to draw the line, but a line must be drawn between (a) the content of the sign (and conduct that merely signifies that its message is directed at the two supervisors) which is asserted to be offensive because of the humiliation and ridicule it produces, and (b) some additional critical element of conduct which shows that the suspension is grounded on more than humiliating speech. In the last analysis, since the record as it stands leaves us unable to say with confidence that appellants’ words were not a cause of their suspension, we must see whether a governmental interest could support the five-day suspension ordered for the use of these words. Street v. New York, 394 U.S. 576, 589, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969).

This approach is consistent with the teaching of Street, where the information charged defendant with igniting the flag and publicly speaking contemptuous words about the flag. The state statute made it a crime to cast contempt upon the flag by words or act. The Court held that the record was insufficient to eliminate the possibility that the defendant was convicted either for his words alone, or for both his words and his act, and that in either event, whether the words were a sole cause or a concurrent cause of the conviction, the conviction could not be sustained unless the words uttered were not protected speech.

II. GOVERNMENTAL INTEREST IN RESTRICTING CONTENT OF SPEECH BY EMPLOYEES

As Judge Gesell noted in his opinion, “The Government’s right to protect the efficiency of its service has frequently been recognized. Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169 (1969).” This rule, recognized in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), must be applied to the specific facts of this case. Two considerations require discussion.

First, since the Bureau had for some time allowed the words “Pigs Off Census” on signs carried in the course of demonstrations at the back of the lunchroom, the government cannot assert that the mere use of such words impair efficiency.

Second, this case is considerably different from others where governmental interests have been asserted. It is unlike Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968) (en banc), where there was both a special relationship (the policemen protecting the Governor) and a challenge to the superior (Governor) on an issue of international relations — in a situation fraught with threat of rioting by Panamanians over American occupation of the Canal Zone. It is also to be distinguished from Goldwasser, where there was disregard of assigned employment duties, with the court noting that an altogether different question would be presented by speech off-hours outside the classroom, 135 U.S.App.D.C. at 230, 417 F.2d at 1177. Unlike Goldwasser, this case does not involve “the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning’?, Pickering, supra, 391 U.S. at 570, 88 S.Ct. at 1735, since appellants had no contact in their work with the two women supervisors.

The asserted governmental interest here is a tranquil environment for government employees during their lunch hour, so that work might be more efficiently performed after the completion of lunch. Thus, the government points to the fact that the spectators, as well as the women supervisors, were upset by the events in question. We think that such a broad asserted interest could rule out any form of protest disturbing to employees in the lunchroom, or for that matter, on their way into work in the morning, if the protest took place outside the Bureau. The difficulty is that a man’s right of free speech comprehends the possibility that persons may be upset by what he says. The permission for demonstrations in the lunchroom cannot be made to turn on refinements as to whether particular slogans are upsetting to some government personnel, particularly when what is at issue is the speaker’s expression of his conviction that their activities are wrong and should be discontinued. What makes this ease different is the issue of discomfort to the two supervisors due to the physical proximity of the two appellants at their table.

In our view, the disciplinary sanction meted out to appellants cannot be sustained if it was predicated, as a crucial ground of decision, whether sole, alternative or concurrent, on the mere content of the sign they displayed as part of their demonstration. Government employees have protection of First Amendment freedoms even when their speech is critical of or embarrassing to their superiors, albeit this doctrine is subject to certain limitations. Pickering, supra; Meehan v., Macy, supra. As already noted, the “fighting words” concept is an exception to protected speech, but we do not think the present record established a predicate for that exception. This is so even though the immunity of government employees from sanction is not necessarily eo-extensive with the immunity of citizens from prosecution for speech on the public way.

On the other hand, there is no doubt that disciplinary sanction could rightly be applied to appellants’ activity at the table, whether it is regarded as conduct or non-protected speech. While we have hitherto focused on the intimidation aspect of this activity, we note also that the government’s interest in efficiency is interlocked with the government employees’ reasonable right of privacy, which other employees of their department may not invade as of right. The issue is not the same as that faced when government officials seek to elevate personal privacy over freedom of comment by the outside press. The scope of reasonable expectation of privacy of a government employee awaits line-drawing and definition. It suffices here to say that while personal privacy may have little weight when asserted at the entrance to the cafeteria, a public place where demonstrations and messages are part of the basic pattern of life, it claims appropriate protection at the luncheon table where the employee sits down, alone or with friends.

The present case is one where the state of the record leaves us to grapple with a sanction imposed on the conjunction of message and conduct. Here we face an intermediate problem of some complexity. This combination would preclude a criminal conviction under Street v. New York, supra, although the Supreme Court may have contemplated that words could be made part of the operative acts if they related solely to the intent of the action, 394 U.S. at 590, 89 S.Ct. 1354. But the criminal analogy is .not decisive. While we have no exact guidelines in Supreme Court jurisprudence, we think the basic needs of government may permit sanctions in cases of mixed conduct and speech where the speech, or written message, is of such character as to be a significant factor in the total effect of the conduct, and it is clear that the sanction is addressed to the effect of the conduct and not to content of the speech. It may well be that this is the situation before us, as viewed by the Census Bureau, but its analysis was not refined in this manner. We do not say that disciplinary action would necessarily be inappropriate under the facts of this case. But in our view the appropriate disposition is a remand, without a vacating of the order, to give the agency an opportunity to tailor its treatment of these employees to the particular activity which exceeds the bounds of First Amendment protection —the activity at the table. This would avoid the deterrence of legitimate speech. While the problem of over-breadth in the public employment sphere can raise First Amendment questions, see Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), it does not necessarily require the same remedy as overbreadth in criminal statutes; specifically, it does not require either a prohibition of any and all penalties, or striking down the regulation, since in matters pertaining to “efficiency of the service” it may be impossible to avoid a broadly-worded regulation. Deterrence of legitimate speech must be minimized by proper application of the prohibition to activity not protected by the First Amendment.

We are fortified in our view that a remand is the proper disposition by considerations of fairness and notice to the employees, that the conduct at the table was prohibited. This leads us to appellants’ “vagueness” challenge.

III. CONSIDERATIONS OF “VAGUENESS”

Appellants claim lack of notice that their activity of July 16, 1971 would be a violation of the “common decency” regulation. They stress that they and others had previously demonstrated at the back of the cafeteria, and up and down the main aisles, sometimes with the slogan “PIGS OFF CENSUS,” without any warning by the relevant authorities that this was illegal activity. They claim that this fact, together with the generally “vague” wording of the regulation, means the sudden suppression of their July 16 activity denied due process.

In view of the impracticability of defining more precisely what type of activity would be injurious to “efficiency of the service” the regulation is not per se at odds with the Fifth Amendment. Where criminal prosecution is not at issue, a broad regulation can be given content by the authorities through its proper application. The necessity of “catchall” regulations as a matter of administrative convenience does not obviate, however, the need to give content to such prohibitions by warnings, which give the general regulations a requisite concreteness, alerting the employee to the activity prohibited. In this regard it is helpful to look once again at the facts of Meehan and Gold-wasser.

In Meehan, the discharged policeman had been warned by his supervisor, the Personnel Director, “to avoid local issuance of comments or statements which could be used by the Panamanian press to inflame further the difficulties between the United States and Panama”. 129 U.S.App.D.C. at 221, 392 F.2d at 826. In Goldwasser, 135 U.S.App.D.C. at 224, 417 F.2d at 1171, appellant had been “repeatedly warned” by the Chief of the Language School that his conduct was prejudicial to the interests of the United States. In the instant case, there had been no warning of any kind, nor is there evidence in the record that appellants expected they would be sanctioned for the specific departure from the normal routine of lunchroom protest.

In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the Supreme Court found it “irrelevant that petitioners at one point testified that they had intended to be arrested,” since the determination whether a statute affords “fair warning . . . must be made on the basis of the statute itself and the other pertinent law, rather than on ... an ad hoc appraisal of the subjective expectations of particular defendants.” 378 U.S. at 355-356 n. 5, 84 S.Ct. at 1703.

Our reasoning fully takes into account our recent decision in Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237 (D.C. Cir. March 20, 1973). In that case the Court held void for vagueness Article 134 of the Uniform Code of Military Justice, which imposes criminal sanctions of up to 20 years imprisonment for “all disorders and neglects to the prejudice of the good order and discipline in the armed forces” and “all conduct of a nature to bring discredit upon the armed forces.” The general language was held insufficient as the basis for defining criminal conduct.

The action in our present context, a few days’ suspension, though of some consequence to the employee, does not brand him as a criminal. Words considered too vague to define a crime may lay the foundation for lesser sanctions. However, the applicability of disciplinary sanctions to a violation of a regulation that would be an impermissible basis for prosecution presupposes that the particular conduct is clearly within the ambit of the regulation, even though there are other respects in which the regulation is ambiguous or vague. That is another issue to be thrashed out on remand, since appellants contend that the conduct resulting in their suspension was virtually identical to conduct previously tolerated. The appeals examiner put it that their activity in this case was “unprecedented,” which is only to say that he found the differences from what had been permitted in the past to be greater than the similarities. But the problem was not analyzed in terms of such similarities and differences by the Bureau, and it has the primary responsibility.

If the Bureau had proceeded by way of reprimand, this issue could have been undercut. The Meehan and Goldwasser cases illustrate this, since the court pointed out that the conduct there involved continued after warning. The specific warning removes any issue of ambiguity. The vagueness problem is diluted, even when there has been no specific warning implementing the general regulation, when the sanction has only the ambiguous quality of reprimand. It is the kind of administrative action that can fairly be used to betoken a determination that there has been poor judgment, as contrasted with a suspension, which betokens past misconduct. We do not say that an agency is necessarily limited to a reprimand when there has been no warning, but rather that when an agency proceeds by way of reprimand it substantially defangs the bite of a claim of unfairness due to vagueness.

In the present case there has been a suspension notwithstanding the lack of a specific warning. This cannot be sustained unless there is a determination, of fair notice to the employee, that requires further administrative consideration on remand.’

IV. REMAND

In the interest of justice, 28 U.S.C. § 2106, this case is remanded to the District Court, to frame an order retaining jurisdiction pending further consideration by the Bureau of the Census. Mee-han, supra, 129 U.S.App.D.C. at 234, 392 F.2d at 839; Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 388 F.2d 557 (1967).

So ordered.

FAHY, Senior Circuit Judge,

concurring:

In concurring in the opinion of Judge Leventhal for the court I add a few words. Due to the importance of the protection of free speech under the First Amendment, great care is required where disciplinary or punitive action is taken against anyone who claims the protection, but we do not exonerate the appellants. The Census Bureau is required, however, to appraise the situation anew, guided as the opinion requires as to the part the words of the sign might have played in the total conduct of appellants. As the opinion states, the disciplinary action meted out to appellants cannot be sustained if it was predicated on the mere content of the sign, solely, alternatively, or concurrently. On the other hand the opinion does not preclude a sanction based on mixed conduct and speech, where the speech, or written message, though itself protected by the First Amendment separately considered, is of such character as to be a significant factor in the total effect of the conduct.

ROBB, Circuit Judge,

dissenting:

I would affirm the judgment of the District Court on the opinion of Judge Gesell, reported as Waters v. Stans, 341 F.Supp. 441 (D.D.C.1972). I add only a few comments on the opinions of my colleagues.

(1) The majority opinion segregates the words of appellants’ sign from their conduct in displaying it. Having accomplished this dissection the majority suggests that disciplinary action against the appellants may have been based upon the content of their sign, as distinguished from their conduct. From these premises the majority concludes that the case must be remanded since “the disciplinary sanction meted out to appellants cannot be sustained if it was predicated, as a crucial ground of decision, whether sole, alternative or concurrent, on the mere content of the sign they displayed as part of their demonstration.” According to the majority the purpose of the remand is “to give the agency an opportunity to tailor its treatment of these employees to the particular activity which exceeds the bounds of First Amendment protection — the activity at the table.”

In my opinion the appellants’ actions and their sign were integral and inseparable parts of their harassment, intimidation and humiliation of the two supervisors. Separation of the sign from the conduct results in an unrealistic and artificial picture of their behavior.

Contrary to the suggestion of the majority the Bureau of the Census did not base its action on the words of the sign, standing alone. Thus, in his suspension letter to the appellants, the Chief of the Personnel Division said:

As you were informed previously, we do not question your right to display a sign, which in and of itself, is not the issue in the case. Rather, the issue is that your actions, considering the content of the sign, the manner and circumstances under which it was displayed, and the effect it could reasonably be expected to have, and did have, by singling out these two individual employees in the cafeteria, amounted to misconduct and violates common decency. (J.A. 47).

Similarly, Judge Gesell did not view the ease as one of a mere “verbal assault”, as stated by the majority. On the contrary, he said “What occurred in. this instance was a pointed verbal assault on fellow employees singled out for this purpose and confronted at the employees’ place of work. Such conduct violates common decency, particularly when done, as is the case here, with the obvious intent to humiliate.” 341 F. Supp. 441, 442 (1972). (Emphasis added). In short, I think the record establishes that the appellants’ words were not an independent cause of their suspension. They were suspended for their conduct, considering the content of their sign.

(2) I think it is. not important that signs proclaiming “PIGS OFF CENSUS” had been carried in demonstrations at the back of the lunchroom. There is an obvious difference between such a general demonstration and the actions of the appellants which focused specifically on the two supervisors while they were having their lunch. The appellants did not have a constitutional right to make their protest whenever and however and wherever they pleased. Cf. Adderley v. Florida, 385 U.S. 39, 47, 48, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). Specifically, in the circumstances they had no right to inflict their ugly behavior upon the two ladies.

(3) I find no impermissible vagueness in the regulation that the appellants violated. Nor do I think there was any reason for the Bureau to warn them that conduct such as theirs would subject them to discipline. Anyone with sense and sensibility enough to earn a salary from the government ought to know that such behavior is improper. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

(4) The majority seems to intimate that a reprimand of the appellants might be approved. I think the fashioning of an appropriate remedy is for the Bureau, not for this court. Cf. Butz v. Glover Livestock Commission Company, Inc., 411 U.S. 182, 93 S.Ct. 1455, 36 L. Ed.2d 142 (1973).

I respectfully dissent.

      . This is the language of item 17 of the Table of Offenses and Penalties set forth in Appendix A, Department of Commerce Administrative Order 202-751, “Employee Grievances.” (J.A. at 63). The Table sets forth, under Penalties: First offense, written reprimand to removal. Second offense, 30 days suspension to removal. Third offense, removal. Appendix A states that “When disciplinary action becomes necessary, consideration should be given to this table as a general guide.”

      . The imposing nature of appellants’ presence at the table is added to by the fact that Mr. Cooper was 5T1" tall, weighing 228 pounds, and on that date was wearing an ammunition style belt loaded with mock cartridges. Tr. 149-150.

      . This was pursuant to Civil Service Commission regulation Part 752, 5 C.F.R. § 752, and Department of Commerce Administrative Order 202-751.

      . 341 F.Supp. at 442.

      . Cohen, supra at 20, 91 S.Ct. 1780, citing Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). See Lewis v. City of New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972) (Powell, J., concurring in the result).

      . This view is not at odds with that taken by the court in Von Sleichter v. United States, 153 U.S.App.D.C. 169, 472 F.2d 1244 (1972). The statute at issue in Von Sleichter proscribed “indecent or obscene words,” and appellant’s shout was in the presence of citizens on the street. As we indicated, Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638 (1969) (en banc), had given the statute a narrow construction, to apply only if the language is under “ ‘contemporary community standards,’ so grossly offensive to members of the public who actually overhear it as to amount to a nuisance.” 472 F.2d at 1257| Here the regulation had not been narrowed through application, nor can we say that “Pigs Off Census” would fall within a similarly narrowed definition.
      Moreover, in Von Sleichter, 472 F.2d at 1247, we distinguished Cohen v. California, supra, on grounds applicable here, pointing out that:
      It involved a written, rather than a shouted, sentiment. Justice Harlan took note of this when he said that people who might be offended could avoid distress by modestly “averting their eyes.” 403 U.S. 15 at 21, 91 S.Ct. 1780. Even as a written word it was part of a political statement concerning the draft, and the kind of language that may be held protected by the First Amendment in that context, with its paramount “redeeming social value,” may not be protected in another context where its coarsely offensive nature is unrelieved.

      . See Women Strike For Peace v. Morton (II), 153 U.S.App.D.C. 198, 472 F.2d 1273, 1295 (1972), as to my views on the utility of the distinction between speech and speech-plus-action.

      . In explicating the meaning of the words used in its charge, the Bureau quoted dictionary definitions which referred to language as well as action. The Bureau stated, inter alia:
      “Decency” is defined by the Random House Dictionary of the English language, Unabridged Edition (1967), as “conformity to the recognized standard of propriety, good taste, modesty, etc., as in behavior or speech.”
      * # * * * *
      “Ridicule,” by the same source, means “speech or action intended to cause contemptuous laughter at a person or thing; derision.” (J.A. at 34)

      . As we said in Meehan v. Macy, supra, 129 U.S.App.D.C. at 230, 392 F.2d at 835, “[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes ‘catch-all’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbeconñng.’ ”

      . Appellant Meehan claimed that this was a request and not a warning, but we rejected that distinction on the facts of the case.


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    In re ESTATE of William L. CLARK, Deceased. Jennifer CLARK, an adult, Appellant, v. John R. CLARK and Girard Trust Bank.
    No. 72-1428.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 9, 1973.
    Decided Dec. 17, 1973.

      E. Ladd Thurston, Washington, D. C., for appellant.
    John S. Hoff, Washington, D. C., with whom Lloyd Symington and Michael F. Curtin, Washington, D. C., was on the brief for appellees.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   LEVENTHAL, Circuit Judge:

This is an appeal from an order of the District Court, sitting in Probate, dismissing objections to an account filed by the executors of the estate of William L. Clark, pursuant to 20 D.C.Code § 1701 et seq. A beneficiary under Clark’s will objects to the executors’ statement of es-penses and compensation for services on the probate assets of the estate, on the ground that the statement did not include all claims for compensation for services on probate assets which the executors would eventually make. We affirm.

I. STATEMENT OF FACTS

The testator, William L. Clark, died on November 6, 1968. His only heirs were his daughters, Jennifer Clark and Lucy P. Clark. His will, dated August 21, 1968, named as executors his brother, John Clark, a resident of Pennsylvania, and the Girard Trust Bank in Philadelphia. At the time of his death, the testator was domiciled in the District of Columbia. The will was admitted to probate and Letters Testamentary were issued by the District Court to the executors, on January 13,1969.

On August 21, 1968, the decedent also created an inter vivos trust in Pennsylvania, for the benefit of the decedent during his lifetime, and then his daughters during their lifetimes. The trust instrument named the Girard Bank as trustee, and provided that John Clark should become an additional trustee at the decedent’s death. The trust instrument was executed at Philadelphia and provided that all questions of its validity or of the administration of the trust' should be governed by Pennsylvania law. Article 13 authorized the trustee to make payments from the principal of the trust for “administration expenses in connection with my estate, even though they do not relate to property becoming subject to this deed.” Under the will, the probate assets in decedent’s estate, valued at $216,367.95 by the Register of Wills, were to “pour over” into the Pennsylvania trust.

On February 10, 1971, John Clark wrote the two beneficiaries of the arrangements concerning compensation for services rendered in connection with estate settlement. This letter advised that $13,400 were claimed in executor’s commissions, and $14,500 in attorney’s fees, to be paid from both probate assets and the principal of the Pennsylvania trust. The following table summarizes the sources and recipients of compensation as disclosed in the February 10 letter:

From. From Probate Trust
Recipient Assets Assets Totals
Girard (co-executor’s commission) $ 5,800 $ 4,100 $ 9,900
John Clark (co-executor’s commission) 3,500 -0- 3,500
Washington counsel (legal fees) 4,000 3,000 7,000
Philadelphia counsel -0- 7,500 7,500
TOTALS $13,300 $14,600 $27,900

On October 8, 1971, the executors filed with the District Court, for its approval, a claim for compensation for services rendered in connection with probate assets, as follows:

Executors’ commissions $9,300
Attorneys’ fees 4,000
$13,300

Jennifer Clark opposed the court’s approval of the executors’ claim, asserting that there was no assurance that the claim represented all compensation for services on probate assets which the executors might ultimately claim; that the compensation which executors intended later to obtain from the trust might represent, in part, compensation for services rendered to probate assets, which would eventually become part of the trust principal; and that since anticipated payments by the executors as trustees were not included in the claim, the District Court could not determine whether the executors’ total compensation for service to the probate assets was reasonable under District of Columbia law. In addition, there was objection to the payment of attorneys’ fees to the Philadelphia law firm in which the executor John Clark is a partner, since under District of Columbia rulings it is improper for an attorney to pay his own law firm for legal services rendered to an estate from which he receives commission as an executor.

The executors asserted that the jurisdiction of the District Court was limited to supervision of compensation for services rendered to probate assets and paid from the probate assets themselves.

The District Court, in an oral ruling, dismissed the objections. The Court stated that “the trust estate in Philadelphia is no concern of ours” and further that

I would assume that the Philadelphia Court, in passing upon the propriety of the claimed commissions and attorneys’ fees in that jurisdiction, will become well aware of what is being done down here.

(JA 156-57).

II. JURISDICTION AND CONCERN OF THE DISTRICT COURT

The jurisdiction of the District Court sitting in Probate (Probate Court) extends to probate assets — those to which title passes under the will. An inter vivos trust in which the beneficial interest passes pursuant to the trust instrument is not a probate asset, see In re Scott’s Estate, 96 F.Supp. 290 (D.D. C.1951), and the Probate Court lacks jurisdiction over questions as to the trustee’s performance of trust obligations, McLane v. Cropper, 5 App.D.C. 276, 298 (1895), appeal dismissed 163 U.S. 682, 16 S.Ct. 1200, 41 L.Ed. 316 (1896), even if the Probate Court has personal jurisdiction over the trustee because he is also an executor.

In the circumstances of this case, we think the Probate Court acted correctly, that it had no jurisdiction over John Clark and the Girard Bank in their capacity as trustees, and that it properly allowed what are palpably fair and reasonable executors’ commissions and attorneys’ fees for services rendered in regard to probate assets, because the individuals involved were planning a separate application to the Pennsylvania court having jurisdiction over the trust.

The arguments before us though compressed in the time constraints of the summary docket, have trailed broadly into fields we do not enter. The executors and attorneys contend that the probate court is solely limited to a consideration of “probate assets.” The beneficiary responds that the court must attend to the reality of “pour over” trusts as part of the entire scheme for disposition of the entire estate left by the decedent, that such trusts, especially with provisions like Article 13, permit a disbursement, outside the view of the probate court, of payments made for services rendered to probate assets, which are in contravention of the legislature’s contemplation of judicial scrutiny over executor’s commissions. They assert that the overriding policy that must be applied is that set forth in 20 D.C.Code § 1705, which provides that executors’ commissions shall not exceed 10% of value of the property in the executor’s account and limiting executors’ expenses and attorneys’ fees to amounts “which the court considers proper.”

We do not think it is necessary to erect a jurisdictional Chinese wall in order to affirm the order before us. We do not need to say, for example, that the Probate Court never has a legitimate concern with an executor’s compensation from a source other than probate assets. It may be, for example, that a private agreement between the executor and the testator, or subsequent to death between the executor an4 an heir, providing additional compensation for probate services to be paid outside probate assets, might offend the policy of limitation embodied in § 20-1705. It may be that the Probate Court would have jurisdiction through its control over the fiduciary to declare the side agreement invalid, as an “overreaching” that was rooted in the executor relationship. In any event, the Probate Court might proceed by disallowing, in light of the agreement, some or all of the compensation claimed by the executor before the court. Similarly, we need not determine that the probate court may never have a legitimate concern with payments made to executors, out of trust assets, for services to probate assets.

The same considerations may apply to the rules evolved in this jurisdiction against payment to an executor for legal services, as a corollary of the principle that an executor cannot seek a personal profit out of his trust. It may be that a probate court may take into account payments made to an executor who has designated himself to render legal services for non-probate assets, at least for the purpose of reducing commissions payable out of probate assets.

But as a matter of judicial administration, the District of Columbia probate court was entitled to proceed with expeditious handling of the probate assets without courting indefinite delay because there might be future related questions in the handling of the Pennsylvania trust. There was no objection to the amount of either the executors’ commissions or the attorneys’ fees claimed before the Probate Court, and no issue of separate payment to an executor, out of probate assets, for legal services he or his firm has rendered. No compensation from the Pennsylvania trust has been formally claimed. Girard Bank and John Clark must ultimately account to the Pennsylvania courts for any payments made from the trust, and the beneficiaries can compel an accounting at any time under Pennsylvania law. The District Court contemplated that objections, if any, to further compensation executors might seek from the Pennsylvania trust, would be presented in the Pennsylvania courts. This disposition comports with principles of sound judicial administration and comity.

We assume that the Pennsylvania courts 'will take notice of the compensation which trustees have been allowed in this jurisdiction, for services rendered to probate assets. We assume also that the Pennsylvania courts will not countenance double payments.

There lurks in this case another issue, whether any payments may properly be made out of the pour-over trust for services to the probate assets not made the subject of a presentation to the Probate Court. The executors and their counsel concede that contemplated payments from the trust of approximately $1400 may represent compensation for services to probate assets, but they argue that the expenses are modest in amount, that they cover services not foreseen at the time the probate account was originally presented to the court, and that an allocation of services between probate and nonprobate assets is, in any case, difficult and rather arbitrary, as well as unnecessary in view of the arrangements of the pour-over trust. The beneficiary, on the other hand, asserts that virtually all of the commissions and fees contemplated for payment out of the trust are, realistically, compensation for probate asset services, since the nonprobate assets are insurance policies and the like, which could not possibly generate the fees claimed.

We identify these questions only to make clear that we are not deciding them, and that in the context of this case we do not consider ourselves the appropriate court to decide ’ them, taking into account sound principles of judicial administration and comity.

Decedent executed his will in Pennsylvania, appointed Pennsylvania domieil-iaries as executors, and provided that compensation of the corporate executor should be in accordance with its standard schedule of fees. It is for a Pennsylvania court to assess the proper significance of that, and to consider also the scope of services rendered to trust assets, including both those assets that were formerly probate assets (which would embrace the accounting rendered in probate court) and those that were never probate assets, the purposes of the trust and the trust principles applicable to its administration.

Affirmed.

      . Article 13 provided :
      The Trustee shall have the power, but not the duty, to make such payments from the principal of this trust as it may think desirable to facilitate the settlement of my estate, and in the .exercise of this power the trustee may pay, in whole or in part, any or all of (i) my debts, (ii) the expenses of my funeral and burial, and (iii) death taxes and administration expenses in connection with my estate, even though they do not relate to property becoming subject to this deed; provided that no property which would be exempt from federal estate tax if not payable to my executors or administrators shall be used to make any payments under this article. Neither my executors or administrators nor any beneficiary of my estate shall be required to reimburse the trustee for any such expenditures.

      . While objections were originally made on behalf of Lucy P. Clark by her mother and “natural guardian,” Sylvia Clark, it now appears that Lucy Clark has consented to the account and withdrawn from the appeal.

      . Estate of Celia A. Martin, No. 23,743, Aug. 1, 1944, reported in 1 Mersch, Probate Practice in the District of Columbia (2d ed. 1952) § 121 n. 99.

      . B. g., In re Hallenback’s Estate, 122 F. Supp. 212 (D.D.C.1954).

      . 20 Pa.Statutes § 320.981 (Purdon, 1952) ; recodified as 20 P.Stat. § 7181 (1972).

      . See Powell v. Ogden, 108 U.S.App.D.C. 6, 278 F.2d 451 (1960).

      . Compare § 316 Restatement, Second, Conflict of Laws (1972) with Moore, Estate Administration and the Conflict of Laws, 35 Va.L.Rev. 316, 331 (1949).


author:
      LEVENTHAL, Circuit Judge:
      BAZELON, Chief Judge,

text:
    UNITED STATES of America v. Henry PATTERSON, Appellant.
    No. 71-1791.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 8, 1973.
    Decided Jan. 17, 1974.
    Rehearing Denied Feb. 8, 1974.
    Bazelon, Chief Judge, concurred in part and dissented in part and assigned written reasons.

      Allan M. Palmer, Washington, D. C., for appellant.
    Joseph E'. di Genova, Asst. U. S. Atty. with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief for appellee.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Appellant was convicted on two counts of possession of a muffler and a silencer for a firearm in violation of the National Firearms Act, 26 U.S.C. § 5861(d), (i), (1970). He contests the admission into evidence of a silencer and certain weapons procured by a search of his car. He also claims prejudice from an as-sertedly improper question asked by the prosecutor. We affirm.

I. FACTS

Officers Ted J. Williams and Herbert Lopez testified that at 3:15 p. m. on June 17, 1970, while on routine patrol in an unmarked vehicle and in “casual clothes,” they observed unusually large crowds on both sides of the 1900 block of 14th Street, N.W., in the District of Columbia. Williams turned his car around so that they could investigate further. Still in the car, they asked members of the crowd what had happened. One person told them that a man had been shot; after travelling a few more feet, they were told by another member of the crowd that not only had there been a shooting but that the assailant was across the street. Appellant was seen across the street in animated conversation with another man. Ending his conversation, appellant went from the rear of his car, where he had been standing, to the front and began to start the car. At this point, Officer Williams, who had just heard a “mumbling” from the crowd that the gun was in the rear of the ear, turned his car around again and cut off appellant’s car before appellant was able to move more than two feet. They placed appellant under arrest for assault with a deadly weapon and transported him and his car to the Third District Headquarters. The car was placed in a locked police lot, and was searched by the police after obtaining a warrant upon an affidavit by Officer Williams. Its text is reprinted in the margin.

II. SEARCH OF THE CAR

We hold that the search of appellant’s car at the stationhouse upon receipt of a search warrant was valid, and that evidence secured thereby was properly admitted at trial. Having reason to believe that evidence of a crime was in appellant’s car, The police immobilized the ear until a search warrant could be obtained in much the same way as they may forcibly detain suspicious individuals for investigatory stops. Cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 23 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Without delay, Officer Williams drew up an affidavit and applied for a warrant to search the car.

Appellant contends that the affidavit did not specify facts sufficient for a judicial officer to find probable cause that contraband or evidence of a crime was secreted in the place or thing sought to be searched. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In evaluating-the sufficiency of affidavits, it should be recalled that they “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. ... A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Moreover, “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” Id. at 106, 85 S.Ct. at 744. Nevertheless, if there is to be even minimal judicial oversight, the magistrate must be presented with something other than the conclusions of the attesting officer. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

Problems arise when the affidavit is based, in whole or in significant part, on information supplied by informants. In Aguilar v. Texas, supra, the Supreme Court found constitutionally deficient an affidavit alleging that “reliable information” had been received from an unnamed and undescribed informant. Instead, the Court required that an affiant basing his- assertions upon information supplied by an informant state some of the “underlying circumstances” that impelled the informant to his conclusions as well as some of the “underlying circumstances” that led the officer to believe that the informant was reliable and his information credible. 378 U.S. at 114, 84 S.Ct. 1509. These requirements have been interpreted in light of the facts peculiar to each case. In Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969), for example, a bruised and bloodied robbery victim pointed out his assailant from a group of spectators gathered at the scene. Not only did he identify his assailant, but he “supplied the salient details, and his bloody face gave credence to what he said. He pointed appellant out as one of the robbers, reiterating this identification several times and, in response to the officer’s query, reaffirm [ed] his staunch belief that he was not mistaken.” Id. at 28, 416 F.2d at 784. This court held that this informant had supplied enough of the underlying circumstances of his reliability and the reliability of his information so as to supply the probable cause needed for arrest. See also Daniels v. United States, 129 U.S.App.D.C. 250, 393 F.2d 359 (1968).

No simple formula for evaluating the veracity of the information given to the police has emerged other than the general admonition that

Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forceable stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — -the subtleties of the hearsay rule should not thwart an appropriate police response.

Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

Officer Williams’ affidavit related that a shooting had taken place and that the victim thereof had been hospitalized. The magistrate was advised that unnamed members of the crowd had independently advised Officer Williams of the fact of a crime and had pointed out the alleged perpetrator. These were the kind of exclamations, hard on the heels of an excited situation, that provide the indicators of reliability, although not necessarily guarantees of trustworthiness, underlying the res ges-tae exception to the hearsay rule. McCormick, Evidence § 297 (2d ed. 1972). Moreover, Officer Williams added the corroborative fact that appellant was first seen standing near the trunk of the car, where he allegedly had just deposited the gun, then moved to the driver’s seat and started off. Attempted flight is a factor to be taken into account in assessing probable cause. United States v. Davis, 147 U.S.App.D.C. 400, 403, 458 F.2d 819, 822 (1972); Green v. United States, 104 U.S.App.D.C. 23, 25, 259 F.2d 180, 182 (1958).

Probable cause is “a plastic concept whose existence depends on the facts and circumstances of the particular case.” Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967). Although any one factor taken alone may be insufficient to provide probable cause, “when viewed in unison the puzzle may fit.” United States v. Davis, 147 U.S.App.D.C. at 402, 458 F.2d at 821. We are not here to second-guess the determination of the magistrate, but only to determine whether Officer Williams’ affidavit supplied him with sufficient information upon which to base a determination of probable cause. We hold that it did.

III. PROSECUTION IMPROPRIETY

Defense witness Anthony Crowner testified that he and appellant had been together. inside a store until just before appellant’s arrest. The prosecutor asked Crowner whether he knew that “the man had been shot right down there.” His purpose apparently was impeachment, since he understood Crown-er’s testimony to say that when Crowner left the store, and saw the arrest, all was calm on the street. But the court had ruled that the prosecutor would be prohibited from informing the jury that appellant was arrested for assault with a deadly weapon or that a man had been shot where appellant was arrested. Defense counsel strenuously objected to the prosecutor’s question particularly since the court had grudgingly agreed, in an earlier and lengthier colloquy, that it would permit only a narrower, more hypothetical, version of the question. When his request for a mistrial was denied, defense counsel alternatively requested a curative instruction advising the jury that there was no factual connection between appellant’s ease and any-shooting. That request was granted, and the court instructed the jury that “anyone shot down the street except as crowds may have gathered, has nothing to do with this case. . . . ”

Appellant now claims error in denial of a mistrial, arguing that the prosecutor’s question placed before the jury highly prejudicial information with little materiality to any permissible issue at trial. The Government contends that the question was relevant on the issue of Crowner’s credibility, in that he had at least impliedly asserted that the situation of the street was calm when he left the store.

There is little doubt both that the question should never have been asked, and that the prosecutor had been alerted as to its inflammatory nature. It is an axiom of the law of evidence that information will be excluded when its probative effect is outweighed by its prejudice to the opposing party. See Proposed Federal Rules of Evidence 403 (1972); McCormick on Evidence § 185 (2d Ed. 1972) and authorities cited therein. See also Macklin v. United States, 133 U.S.App.D.C. 347, 410 F.2d 1046 (1969); Jackson v. United States, 129 U.S.App.D.C. 392, 395 F.2d 615 (1962). Crowner testified that both he and appellant were inside at the time the alleged shooting occurred; by his account, the crowd was substantially dispersed by the time he left the store. Therefore, it would have hardly been inconsistent for him not to have noticed that a man had been shot. The damage to his credibility would have been slight indeed. Weighed against this was the prejudice inhering in the implied suggestion to the jury that appellant was somehow involved in the shooting down the street.

However, the District Court’s response was prompt and unequivocal. Immediately after the offending question was asked, the court instructed the jury that “There is no connection shown in any way between the guns in this case and any shooting of anybody down the street, no connection at all.” The fair implication of the court’s statement is that there was neither legal connection, nor factual connection. There could hardly have been a more efficacious curative instruction, and we think that it virtually eliminated the possibility for prejudicial error.

Affirmed.

BAZELON, Chief Judge,

concurring in part and dissenting in part:

I concur in part II of the court’s opinion. I disagree, however, with two conclusions reached in part III.

I

The first relates to the trial court’s refusal to declare a mistrial sought by the defense on the ground that the prosecutor asked a highly prejudicial improper question in the face of a stern warning from the trial court not to do so. The prosecutor’s question may have suggested to the jury that there was some connection between the weapons found in appellant’s car, and a shooting that had occurred at the time and near the scene of his arrest. This revelation was blatantly prejudicial; it is too fanciful even to speculate that a curative instruction could erase the damage. Nevertheless, this court sustains the refusal to grant a mistrial, thereby tacitly condoning, rather than forthrightly condemning, inexcusable prosecutorial misconduct. The effect is to undermine confidence in the fair administration of justice in this jurisdiction.

II

The second conclusion relates to the court’s holding that the government’s failure to produce a fingerprint report was not fatal. I find the present record inadequate for disposition of this issue.

Appellant’s defense, based on the testimony of one witness, was that someone had borrowed his ear on the day in question, and unbeknownst to him had placed the weapons in his trunk. He argued at trial, and again on appeal, that he should be given access to any fingerprint report in the possession of the government because it might show that the prints on the weapons were those of the man whom appellant claims placed the guns in his car. The government answered that it was unable to locate any fingerprint report. The evidence indicated that some effort had been made to lift prints from these weapons. The officer who had initialled the weapons, indicating that he had fingerprinted them-, was on vacation at the time of trial. Appellant subpoenaed his supervisor who testified that department regulations required that all attempts to lift prints, even unsuccessful ones, .were to be entered in “department log books.” He also said that he had checked the books, but found no entry with respect to the weapons in question. The trial court ruled that nothing could be done at that time because the fingerprinting officer was unavailable. He said that if the defense could subsequently show that the government had suppressed the fingerprint report, or that “there were fingerprints favorable to the defendant,” he would order a new trial. The record reflects nothing further on this issue.

I would remand to determine what, if any, efforts were made to contact the officer who supposedly tried to lift the prints, and what was the outcome of such efforts. The majority opinion fails to consider this question.

I would also remand because the trial judge ignored our decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), and therefore limited his concern to the issue of suppression of the fingerprint report. Bryant, however, held that the government would be responsible not only for suppressing evidence, but also “for non-disclosure based on loss of evidence unless [it] can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation.” 439 F.2d at 652 (emphasis in original).

The majority dismisses appellant’s Bryant-claim on the ground that:

here there were police procedures for preservation of this evidence. The problem is that occasionally even with the best of procedures reports get mislaid, and the question is, what to do?

The answer, in short, is to establish affirmatively that the most earnest efforts were pursued to recreate the substance of the lost evidence. In the present case, the agent who tried to fingerprint the weapons could be called; he might be able to reveal whether his efforts were futile or fruitful, and if fruitful, whose prints were discovered. Such a procedure would enhance the appearance of justice, if not its substance.

Moreover, when evidence is lost due to an apparent failure to comply with existing procedures, and its substance cannot be recreated, Bryant requires a hearing to insure that the government has adequately “enforced” the procedures, and that there has been a “good faith” effort to abide them in the case at hand. To be sure, there will be times when evidence is lost, and cannot be recreated, despite scrupulous efforts to follow comprehensive procedures. Lacking a crystal ball, howevér, I prefer to make that determination on the basis of a full factual record, rather than on the blind guess of my brethren.

The majority claims that such an inquiry was not required in this case because “[d]efense counsel showed no interest in . any possible fingerprints,” until testimony at trial indicated “that some effort had been made to lift the prints.” As soon as counsel was advised that there had been an effort made to lift prints, he explicitly called the Bryant case to the attention of the court. Thus, the failure to hold a Bryant-type hearing was due to the court’s unwillingness to apply that decision, and not to counsel’s failure to “timely raise” the issue, as the majority suggests. Indeed, if appellant’s Bryant-claim was foreclosed by counsel’s failure to act promptly, appellant may have received ineffective assistance of counsel. In United States v. DeCoster, 487 F.2d 1197 (1973), we held that one of the obligations of defense counsel was to make “efforts to secure information in the possession of the prosecution and law enforcement authorities.” (Id. at 1204.)

In short, appellant was denied the benefits of a full factual hearing into the missing report either because of the trial court’s refusal to apply Bryant, or his counsel’s ineffectiveness. Thus, I cannot join my colleagues in concluding that it is appellant who must suffer the consequences.

      . Officer Williams also testified -that he heard appellant’s companion state “Get out of here man, police are coming,” but since this allegation was not included in the affidavit for a search warrant, we do not include it in our statement of facts here.

      . AFFIDAVIT RELATIVE TO REQUEST FOR U. S. MAGISTRATE’S SEARCH WARRANT FOR 1970 FORD, BEIGE AND BLACK IN COLOR, DC TAGS 760-089,
      While on routine patrol, at 14th and U Streets, NW, Washington, D.C., on June 17, 1970, the undersign came on the scene of a shooting. From the on scene appearances the shooting had occured only moments before. The victim had received four shots in various parts of the houy and has been transported to a hospital.
      A crowd had gathered on the scene and several persons in the crowd advised me that the occupant of the above described vehicle had done the shooting. Another officer arrested the occupant and is booking him at the time this affidavit is being prepared. The name of the occupant is not presently known to the undersign.
      Just prior to members of the crowd informing me that the above described occupant had done the shooting, I observed him coming from the rear of the above automobile. There was a muttering in the crowd to the effect that a gun was in the trunk of the above automobile. However, no member of the crowd would step forward and be identified as saying the gun was in the trunk.
      In view of all the above, particularly that the gun was not recovered although the undersign was on the scene within minutes after the shooting, that the members of the crowd kept stating that the gun was in the trunk, and that the undersign personally observed the suspect in this case near the area of the trunk, it is requested that a search warrant issue for the automobile described in the heading of this affidavit for the gun and in any other evidence of the offense.

      . We do not stop to consider the precise quantum of evidence a policeman must have before he has grounds for an investigatory stop. For our purposes here, it is sufficient to note that the level of evidence need no* approach probable cause, nor need the source of the evidence be the officer’s own perception. Cf. Adams v. Williams, 407 U. S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We also do not pass on the validity of the warrantless arrest, although it should be noted that the policeman’s determination of probable cause to arrest may well have included observations not included in the affidavit. See, e. g., footnote 1.

      . Once it is conceded that the police may immobilize the situation long enough to procure a search warrant to investigate further, we think that it follows that the police may place a suspect’s car in custody for the short time it takes to get a warrant. The alternative is to post a guard on a crowded street — possibly an inflammatory practice. In fact, once the suspect has been removed from the scene, placing the car in a locked lot operates to his benefit as well as to that of the police.

      . Although the affidavit does not recite the precise source of this information, a fact subject to such quick and certain verification is unlikely to be falsified. The police are not required to track the details of how they became acquainted with widely known facts

      . THE COURT: Ladies and gentlemen: There has been some talk here about whether or not some person was shot down the street. Let me say this to you: Whether or not someone was shot down the street has no relevancy whatever to this case unless it would be shown that large crowds were around and that the circumstance was not as some witness might say calm and peaceful and so on, it would have no other purpose whatever. There is nó connection shown in .any way between the guns in this case, and any shooting of anybody down the street, no connection at all. And the jury will not consider them in any relationship thereto. * * * The charges in this case are two, and two only, and that, is, that this defendant had in his possession a firearm or a certain silencer which the statute defines includes a silencer, had a firearm which the statute interprets and defines as including a muffler or silencer, and that it wasn’t registered ; and two, it didn’t have serial numbers on it as required by law.
      And I say again, anyone shot down the street except as crowds may have gathered, has nothing to do with this case. (Tr. I 114-115.)

      . Appellant protests failure to give an instruction on joint possession of the gun. We think the instruction that constructive possession requires “the power and intention at a given time to exercise dominion and control” sufficed to avoid error and prejudice.
      Relying on United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), appellant requests a dismissal of the indictment as a sanction for non-disclosure based on loss of evidence, in view of the Government’s failure to account for a possible police report of efforts to raise fingerprints on the weapons found in his car. Bryant was concerned with a prophylactic rule to assure that the Government instituted “procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation.” (439 F.2d at 652). But here there were police procedures for preservation of this evidence. The problem is that occasionally even with the best of procedures reports get mislaid, and the question is, what to do?
      This is not a case where a question as to fingerprints on the weapon had been timely-raised by defense counsel. In such case, there would have been a basis to contend to the District Court that the rules were paper rules, and not systematic procedures enforced in good faith.
      In this case, as the trial court noted (Tr. I 175), experienced defense counsel did not telephone in advance to find out whether any fingerprints had been found. Defense counsel showed no interest in the weapon, or any possible fingerprints thereon, before or at trial, until Officer Lopez testified that some effort had been made to lift the prints. The reality is, as Officer Dion testified without contradiction, that the chances of lifting identifiable fingerprints from a handgun or silencer are about one in ten (Tr. I 168). The Government was willing to stipulate that no prints were found on the gun or the silencer (Tr. 1155).
      The interest belatedly shown by defense counsel in the fingerprint issue enabled him to make an effective “missing witness” kind of argument to the jury. See, e. g., Tr. II 238: “Obviously, if Patterson’s prints were found, you would have seen it on the stand. However, isn’t it strange that the printing officer is not produced by the Government?” The argument was sustained over the prosecutor’s protest.
      Moreover, the trial court did not shut out further inquiry into the matter of fingerprints taken. Kather he ruled (Tr. I 175) that “if this defendant is convicted and it is found out that [the officer] took fingerprints and that they were identifiable, I will grant a new trial ... If they were identifiable for anybody other than the defendant.” That ruling is part of the record, and is in effect incorporated in both the judgment of the trial court and this court’s affirmance. We fail to see how the defendant can assert prejudice from this handling of the matter by the trial judge, especially taking into account the lateness of the defendant’s inquiry and the fact that the officer who handled the fingerprinting was on leave at trial time. What the trial court did was responsibly addressed to any substantial claim of defendant, and requires no interposition on our part in the interest of justice.

      . For a discussion of the question, and the context in which it was asked, see pp. 111-112 supra.

      . See Macklin v. United States, 133 U.S.App.D.C. 347, 410 F.2d 1046 (1969); cf. Lee v. United States, 125 U.S.App.D.C. 126, 368 F.2d 834 (D.C.Cir.1966).

      . We have in the past reversed several convictions secured by this former assistant U. S. Attorney because he went beyond the bounds of permissible advocacy. See United States v. Carter, 157 U.S.App.D.C. 149, 482 F.2d 738 (1973); United States v. Whitmore, 156 U.S.App.D.C. 262, 480 F.2d 1154 (1973); United States v. Hawkins, 156 U.S.App.D.C. 259, 480 F.2d 1151 (1973); United States v. Phillips, 155 U.S.App.D.C. 93, 476 F.2d 538 (1973).

      . See also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966); Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967).

      . The majority “fail [s] to see how the defendant can assert prejudice from this handling of the matter by the trial judge . . . .” The prejudicé alleged, and suffered, was a denial of rights protected by Bryant. A hearing may have uncovered fingerprint evidence strongly corroborating appellant’s defense, or it may have indicated that the government failed to satisfy Bryant.