author: TAMM, Circuit Judge:

text:
    The CITY OF NEW YORK on behalf of itself and all other similarly situated municipalities within the State of New York, City of Detroit, (Party Plaintiff), v. Russell B. TRAIN, as Administrator of the United States Environmental Protection Agency, Appellant.
    No. 73-1705.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 2, 1973.
    Decided Jan. 23, 1974.
    Certiorari Granted April 29,1974.
    See 94 S.Ct. 1991.

      Edmund W. Kitch, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on brief for appellant.
    Evan A. Davis, Asst. Corp. Counsel, New York City, for the City of New York, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court with whom John R. Thompson, New York City, and James R. Atwood, Washington, D. C., were on the brief, for appellee.
    Robert E. Killian, Atty. Gen. of the State of Connecticut filed a brief on behalf of the State of Connecticut, as ami-cus curiae.
    Nicholas C. Yost, Deputy Atty. Gen. of the State of California filed a brief on behalf of the State of California, as amicus curiae.
    Before TAMM, ROBINSON and WILKEY, Circuit Judges.
   TAMM, Circuit Judge:

This suit was brought as a class action by the City of New York (hereafter “City”) on behalf of itself and all other similarly situated municipalities within the State of New York. The defendant below was Mr. Russell B. Train, Administrator of the Environmental Protection Agency (hereafter, “The Administrator”). The City of Detroit, Michigan, was granted leave to intervene as party plaintiff. On May 8, 1973, the United States District Court for the District of Columbia granted City’s motions for summary judgment and to maintain this lawsuit as a class action, concurrently denying the Administrator’s motion to dismiss. The Administrator brings this appeal from the trial court’s ruling, and, for the reasons stated infra, we affirm.

I. BACKGROUND

This is but one of a number of cases presently pending across the country concerning allocation of funds under the Federal Water Pollution Act Amendments of 1972 (hereafter, “Act”). In order to place the instant dispute in its proper context it is necessary to understand the legislative history of the Act. The Act revised the procedures for funding federal aid to local governments for the purpose of the construction of sewage treatment plants. Prior to the Act’s passage, these expenditures were first authorized and then specifically funded by the normal Congressional appropriation process. Due to the nature of this process, local governmental recipients could not ascertain the exact amount they would receive until after the formal appropriation. As a result, local governments were hesitant to enter construction contracts with only a hope that federal monies would be ultimately passed to them.

The Act was passed to insure that ultimate grantees could rely in advance on the amounts available. Section 101(a) declares that to clean the nation’s waters “it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works.” To this end, the Act created a funding mechanism known as “contract authority”. The technical operation of the sections of the Act relating to this “contract authority” spending is at the heart of this dispute and a thorough understanding of the mechanism is, therefore, imperative.

There are six distinct steps involved in funding under the Act: (1) Authorization by Congress to appropriate funds (.§ 207); (2) “allotment” of these authorized sums among the various states, pursuant to formula (§ 205); (3) review by the Administrator of project proposals submitted by a particular municipality (§§ 203, 201(g)(2) and 204); (4) “obligation” by the Administrator of the federal share of an approved project (§§ 203 and 201(g) (1)); (5) appropriation by Congress of funds to pay obligated contracts as they fall due; and (6) disbursement of the funds (§ 203(b) and (c)).

After the Act was enacted into law, over Presidential veto, the President wrote to the Administrator, directing him to allot “$2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974.” The Administrator followed orders and allocated a total of $5 billion for both fiscal years. It is this final action by the Administrator which has been labeled “Presidential impoundment” and which was successfully challenged in the trial court by plaintiff-appellee City.

II. THE TRIAL COURT’S RULING

Plaintiff-appellee City basically argued below that §§ 205(a) and 207 of the Act, read together, required the Administrator to allot among the states the sums of $5 billion and $6 billion in fiscal years 1973 and 1974 respectively. Once allotted, these amounts would then be available for obligation under the Act. By the allotment of only $5 billion total for fiscal years 1973 ;and 1974, it is argued that the Administrator violated the statute.

The Administrator, defendant-appellant, made several arguments in the trial court. He argued that (1) the trial court lacked jurisdiction, the suit being barred by the doctrine of Sovereign Immunity; and (2) that the claim failed to present a justiciable case or controversy because (a) it was “hypothetical and premature” and (b) it stated a “political question” thus beyond the jurisdiction of the court. The trial court found against the Administrator on all these arguments, but appellant brings before this court only two issues: (1) whether Sovereign Immunity bars this suit; (2) whether §§ 205(a) and 207 of the Act confer discretion on the Administrator to determine the sum to be allotted under the Act.

III. SOVEREIGN IMMUNITY

It is our opinion that the trial court was correct in holding that City’s suit is not barred by the principle of sovereign immunity. Counsel for the Administrator conceded at oral argument that the law of this circuit, Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859, 873 (1970); Constructores Civiles de Centroamerica v. Hannah, 148 U.S.App.D.C. 159, 459 F. 2d 1183, 1191 (1972), permits the maintenance of this suit with the Administrator as defendant. In view of this concession, we need do no more than state that we hold the suit is not barred. We agree with the reasoning of the trial court and here adopt the opinion below to the extent that it treats the Sovereign Immunity question.

IV. THE MEANING OF §§ 205(a) AND 207

We now turn to the analysis which is central to resolution of the matter sub judice, i. e. the meaning of §§ 205(a) and 207 of the Act which are reproduced in the margin supra. Appellee-City relies upon the phrase “shall be allotted” in § 205(a), arguing that by the use of “shall”, rather than a word plainly conferring greater discretion (e. g. “may”), Congress intended that allotment under the Act be mandatory. The Administrator, on the other hand, asserts that changes in these sections of the Act, prior to its enactment, show a legislative intent to confer discretion upon the Administrator. H.R. 11896, the bill from which §§ 205 and 207 ultimately were derived, was amended in conference. The phrase “not to exceed” was inserted before each specified sum in § 207 and the word “all” was deleted from before the phrase “sums authorized to be appropriated” in § 205(a). Appellant argues that these changes indicate that Congress intended to give the Administrator absolute discretion over whether and how much to allot under the Act.

A. The Overall Intent of the Act Initially, it is to be noted that a “plain meaning” analysis will not suffice here. As the Administrator admits “there is no happy marriage between the provisions of the statute . . . .” We agree for we can find no way to harmonize the term “shall allot” and the language concerning sums “not to exceed.” Accordingly, we turn to an analysis of relevant legislative history to ascertain whether the legislature intended any discretion at the “allotment” stage of the funding mechanism. Wilderness Society v. Morton, 156 U.S.App. D.C. 121, 134, 479 F.2d 842, 855 (1973).

The legislative history is extensive, covering some 1700 pages. Of particular importance are the views expressed by Congressman William Harsha and Senator Edmund Muskie, sponsors of the legislation. The amendments upon which the Administrator relies were authored and sponsored by Congressman Harsha, and are commonly referred to as the “Harsha Amendments.”

After a careful reading of the relevant legislative materials, we believe that throughout the lengthy legislative process, Congress manifested an intent to specifically commit federal funds. It did so in recognition of the necessity of assuring the .states that federal aid would be available. The need was recognized in 1971 by the Senate subcommittee considering water pollution:

At a bare minimum the credibility of the existing federal commitment must be re-established by backing words of authorization with monies of appropriation. Whenever the nation seeks to encourage cities to plan and construct improvements which require many years to complete, the Congress must build reliability into its federal grant incentives. Major facilities cannot be stopped in midstream. A change in federal grant policy to establish a reliable commitment is vital but is not the only change that can and should be made in the federal legislative and regulatory approach to water pollution abatement.

U.S. Senate, Committee on Public Works, Water Pollution Control Legislation Hearings, pt. 1, at 521 (1971).

This commitment continued and the subcommittee on Air and Water Pollution concluded in 1972:

The language of subsection (b) [sic] of Section 207 provides that funds authorized for fiscal years 1973, 1974, and 1975, shall be available for obligation by contract upon their allocation to the States. The importance of assured Federal financial support to the achievement of the objectives of this title and to our national purpose of cleaning up polluted waterways cannot be overstated. The task is a massive one in terms of the work to be done and the funds to be expended.

S.Rep. No. 92-414, 92nd Cong., 1st Sess. 35 (1971).

The two principal sponsors of the Act both clearly articulated their belief that federal money must be spent, and, in fact, strongly indicated their recognition that the full $18 billion would be allotted. Senator Muskie stated:

The conferees spent hours and days studying the problem of financing the cleanup effort required by this new legislation. The members agreed in the end that a total of $18 billion had to be committed by the Federal Government in 75 percent grants to municipalities during fiscal years 1973-75. That is a great deal of money; but that is how much it will cost to begin to achieve the requirements set forth in the legislation. .
Mr. President, to achieve the deadlines we are talking about in this bill we are going to need the strongest kind of evidence of the Federal Government’s commitment to pick up its share of the load. We cannot back down, with any credibility, from the kind of investment in waste treatment facilities that is called for by this bill. And the conferees are convinced that the level of investment that is authorized is the minimum dose of medicine that will solve the problems we face.

118 Cong.Rec. S 16870-71 (daily ed. October 4,1972) (emphases added).

It is evident that Congress was concerned with possible inflationary effects. However, it is just as evident that Congress believed that the full $18 billion expenditure was necessary. Senator Cooper stated:

I believe that the funding levels for these and other provisions of the bill, which total over $24 billion — subject to the usual presidential responsibility for evaluating these needs in relation to other national priorities — are responsible, are consonant with the magnitude of our Nation’s water quality problems, and will not have an inflationary effect upon our economy
Contract authority is provided for up to $5 billion in 1973, $6 billion in 1974, and $7 billion in 1975. This will he allocated to the States on the basis of the Environmental Protection Agency’s annual assessment of needs established without regard to budgetary limitations and other nonwater quality factors.

Id. at S 16881 (emphasis added). Senator Bayh also emphasized the necessity of a full Federal commitment:

The conferees agreed to accept the House passed authorizations for grants to the States for the construction of waste treatment plants, including sewage collection systems. This is construction which is absolutely essential if we are to make any meaningful progress toward the national goals established in the bill. The total authorization for this purpose is $18 billion over the 3 fiscal years ending in 1975. There is no doubt that this money is needed, for without substantial authorizations he [sic] bill would be little more than a series of empty promises. The amounts allocated for grants for construction of treatment works will be distributed to the States on the basis of need, with the Federal share of construction costs being 75 percent.

Id. at S 16892-93 (emphasis added). Congressman Johnson made clear the intent of the House to spend $18 billion to meet the water pollution problem. In his report to the House, he stated:

You may recall that, the bill that passed this body last March called for authorizing a little more than $24.6 billion, the Senate bill authorized $20 billion, and the administration requested $6 billion. The conferees have agreed on essentially the same figures as in the House bill, $24.6 billion for the period through fiscal 1975. A total of $18 billion of this sum is for construction grants, and breaks down not to exceed $5 billion for fiscal 1973, $6 billion for fiscal 1974, and $7 billion for fiscal 1975.
Naturally, the large difference in what the administration asked, and what the conference bill provides, raises the question of why the substantial discrepancy?
There is only one answer to that and it is that if we set out to do this job there is no way we can accomplish it without paying the price. If we want clean water, we have to pay for clean water. If we want the States and cities to move aggressively ahead in building waste treatment plants they must have Federal aid, and they must have confidence that Washington will continue to live up to its commitments.

Id. at H 9130 (emphasis added).

The President, in his veto message to Congress on October 17, shared this view that the Act would require ultimate expenditure of $18 billion for sewage treatment under § 207 of the Act:

I am compelled to withhold my approval from S. 2770, the Federal Water Pollution Control Act Amendments of 1972 — a bill whose laudable intent is outweighed by its unconscionable $24 billion price tag. My proposed legislation, as reflected in my budget, provided sufficient funds to fulfill that same intent in a fiscally responsible manner. Unfortunately the Congress ignored other vital national concerns and broke the budget with this legislation.

118 Cong.Rec. S 18534 (daily ed. October 17,1972).

In the discussion of the Act prior to its being enacted over the veto, Congress again clearly expressed its intention to provide the full $18 billion. Senator Muskie spoke of the President’s concerns :

But may I say to [Senator Scott], when we pass a piece of legislation like this, with its requirements imposed on industry, with its requirements imposed on the States, with its requirements imposed on the local governments, the question that faces us then is, as we imposed this commitment on them, what commitment are we prepared to accept on the part of the Federal Government ?
This point was well debated in the Senate when we took up this bill. I made it clear, the committee made it clear, that what we were asking of the Congress was a commitment that these people in other levels of government and the private sector could rely upon. Of course there is a commitment. The President 3 years ago, in his state of the Union message, said he had preempted the environmental issue and that he was making a commitment.
The conferees spent hours and days studying the problem of financing the cleanup effort required by this new legislation, and specifically studying how much money would be necessary to achieve the objective and goals of the act, as set forth in section 101(a).

118 Cong.Rec. S 18548 (daily ed. October 17, 1972). Congressman Harsha responded in a like vein:

Mr. Speaker, there is another point which I must raise. We have known all along that it would take a massive amount of money and time to reclaim and to protect our precious water resources. But, we dare not measure the cost of this water bill merely in terms of dollars alone. We cannot measure the wealth of our great natural resources in dollars alone — and if we wait too long, all the dollars on earth won’t buy back what we’ve lost. Under these circumstances, I am firmly convinced that the price of killing this water bill — of sustaining this Presidential veto — is far, far too costly.
Furthermore, the President maintained that a vote to override the veto of the Water Pollution Control Act Amendments of 1972 was a vote to increase the likelihood of higher taxes. So be it, the public is prepared to pay for it. To say we can’t afford this sum of money is to say we can’t afford to support life on earth.
Mr. Speaker, this is perhaps the most important environmental legislation the Congress has yet enacted. The question is not, “Can we afford to spend $18 billion over the next 3 years for waste treatment plants?” but “Can we afford not to ?”

118 Cong.Rec. H 10268-69 (daily ed. October 18,1972) (emphases added).

The cardinal principle of interpretation is “to give effect to the intent of Congress.” United States v. American Trucking Ass’ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). We have included these extensive excerpts at this point because we find in them a clear expression of legislative will. We find that it was Congress’ intention that the full $18 billion be spent to control water pollution. Had the statute been clearly drawn, this would end our inquiry, if in fact one need ever have begun. Unfortunately, we must still confront the problem of the Administrator’s arguable discretion to allot or not allot. We do so in the belief that the legislative history, as quoted above, manifests an intent to create a procedure which would insure that the total authorized funds would be made available to the states. It is this goal which must guide us in interpreting the funding mechanism, for if discretion in allotment would make the achievement of this goal more difficult, it must be assumed that Congress intended no such authorization. See, e. g., United States v. Congress of Industrial Organizations, 335 U.S. 106, 112, 68 S.Ct. 1349, 92 L. Ed. 1849 (1948); Vermilya-Brown Co., Inc. v. Connell, 335 U.S. 377, 388, 69 S.Ct. 140, 93 L.Ed. 76 (1948).

B. The Meaning of the Harsha Amendments

We now turn to the analysis of §§ 205(a) and 207, particularly with regard to the effect of the Harsha Amendments. As we indicated earlier, it is important to keep in mind the distinct stages involved in the contract-grant mechanism. Appellant-Administrator argues, primarily from the Harsha Amendments, that the Act permits discretion at the allotment phase. Appel-lee-City counters that while the Administrator might control the timing of future spending through delay of obligation, he must fully allot. We agree with Appellee because, after careful consideration of the relevant history, we find it clear that the Congressional intent, both before and after the Harsha amendments, was to make allotment mandatory-

Section 205(a), by its terms, supports the Appellee. It is mandatory in tone: “Sums authorized to be appropriated pursuant to section 207 for each fiscal year . . . shall be allotted by the Administrator . . . . ” (Emphasis added.)

The Appellant argues that the Harsha Amendments, by adding “not to exceed” in § 207, manifest an intent to make the allotment (under § 205) discretionary. However, the imposition of a ceiling on authorized appropriations is not inconsistent with the Appellees’ position concerning mandatory allotment. Logically, it could be interpreted to mean that the amount obligated (later appropriated and expended) in any fiscal year may be less than the maximum amount authorized. We concede that the elimination of the word “all” from § 205(a) is a source of confusion. At least one court has chosen to rely entirely upon this syntactical change, although there is no precise explanation of its meaning. We consider it more useful to examine the statements of sponsors purporting to explain the intended effect of the Har-sha Amendments; we find that allotment remained mandatory.

Perhaps the clearest statement in the Congressional history is that of Senator Muskie in explaining the purpose behind the Harsha Amendments:

In our last conference, the able and distinguished ranking minority member of the House Committee on Public Works offered two amendments which he indicated would reduce opposition to the bill from the White House and the Office of Management and Budget. These two amendments were accepted by your conferees and by other House conferees in order to remove the question of a veto on the basis of the money authorized by the legislation.
Under the amendments proposed by Congressman WILLIAM HARSHA and others, the authorizations for ob-ligational authority are “not to exceed” $18 billion over the next 3 years. Also, “all” sums authorized to be obligated need not be committed, though they must be allocated. These two provisions were suggested to give the administration some flexibility concerning the obligation of construction grant funds.
The conferees do not expect these provisions to be used as an excuse in not making the commitments necessary to achieve the goals set forth in the act. At the same time, there may be instances in which the obligation of funds to a particular project in a particular State may be contrary to other public policies such as the National Environmental Policy Act. In these cases the conferees would of course, expect the administration to refuse to enter into contracts for construction.

118 Cong.Rec. S 16871 (daily ed. October 4, 1972) (emphasis added). Senator Muskie stated clearly that allotment under the Act is to be mandatory.

Congressman Harsha, in explaining the meaning of his amendments, stressed that flexibility with regard to obligation was their purpose:

Furthermore, I want to point out that the elimination of the word “all” before the word “sums” in section 205(a) and the insertion of the phrase “not to exceed” in section 207 was intended by the managers of the bill to emphasize the President’s flexibility to control the rate of spending.

Id. at H 9122 (emphasis added). It is our belief that Congressman Harsha, by emphasizing that the President could “control the rate of spending,” was clearly referring to control at the obligation stage. Had the amendments been designed to confer discretion at the allotment stage, Congressman Harsha could have so stated; furthermore, the Congressman had clearly intended to obligate the entire $18 billion to meet the pollution problem and his views as to the amendments must be read in light of his expressions of the total legislative intent.

The Harsha Amendments were further analyzed in a discussion among Congressmen Ford, Harsha, and Jones.

MR. GERALD R. FORD. Mr. Speaker ... I think it is vitally important that the intent and purpose of section 207 is spelled out in the legislative history here in the discussion on this conference report.
As I understand the comments of the gentleman from Ohio [Harsha], the inclusion of the words in section 207 in three instances of “not to exceed” indicates that is a limitation. More importantly that it is not a mandatory requirement that in 1 year ending June 30, 1973, there would be $5 billion and the next year ending June 30, 1974, $6 billion and a third year ending June 30, 1975, $7 billion obligation or expenditure?
MR. HARSHA. I do not see how reasonable minds could come to any other conclusion that the language means we can obligate or expend up to that sum — anything up to that sum but not to exceed that amount.
MR. GERALD R. FORD. Mr. Speaker, I would like to ask the distinguished chairman of the subcommittee and the chairman of the House conferees whether he agrees with the gentleman from Ohio (Mr. Harsha).
MR. JONES of Alabama. . . .
My answer is “yes.” Not only do I agree with him, but the gentleman from Ohio offered this amendment which we have now under discussion in the committee of conference, so there is no doubt in anybody’s mind of the intent of the language. It is reflected in the language just explained by the gentleman from Ohio (Mr. Harsha).
MR. GERALD R. FORD. Mr. Speaker, this clarifies and certainly ought to wipe away any doubts anyone has. The language is not a mandatory requirement for full obligation and expenditure up to the authorization figure in each of the 3 fiscal years.

Id. at H 9123 (emphases added).

From these statements, we draw the conclusion that the amendments were intended to grant the executive discretion in the obligation phase, not in the allotment phase. The President evinced a similar understanding in his veto message:

Certain provisions of [the bill] confer a measure of spending discretion and flexibility upon the President, and if forced to administer this legislation I mean to use those provisions to put the brakes on budget-wrecking expenditures as much as possible.
But the law would still exact an unfair and unnecessary price from the public. For I am convinced . that the pressure for full funding under this bill would be so intense that funds approaching the maximum authorized amount could ultimately be claimed and paid out, no matter what technical controls the bill appears to grant the Executive.

118 Cong.Rec. at S 18534-35 (daily ed. October 17, 1972) (emphases added). It is true that the President’s statements concerning the Act are not to be given the weight accorded to statements by members of Congress. Nevertheless, it appears to have been the President’s understanding that § 205 and § 207 conferred upon the Administrator only “spending discretion and flexibility.” He evidently felt that since the sums had to be allotted and made available for obligation, public pressure could force him to obligate the funds.

After the veto, both Senator Muskie and Congressman Harsha again explained the effect of the amendments upon the allotment phase. Senator Muskie repeated his position that the Administrator must allot the sums authorized. Congressman Harsha reiterated his explanation of the amendments to the House, stating:

Furthermore, Mr. Speaker, we have emphasized over and over again that if Federal spending must be curtailed, and if such spending cuts must affect water pollution control authorizations, the administration can impound the money.
I want to point out that the elimination of the word “all” before the word “sums” in section 205(a) and insertion of the phrase “not to exceed” in section 207 was intended to emphasize the President’s flexibility to control the rate of spending.
Second, I would like to point out that the Administrator of the Environmental Protection Agency must approve plans, specifications, and estimates. This is the pacing item in the expenditures of funds. It is clearly the understanding of the managers that under these circumstances the Executive can control the rate of expenditures.

118 Cong.Rec. H 10268 (daily ed. October 18, 1972) (emphases added). Congressman Harsha then explained the impact of the Act in future fiscal years:

[T]he first major impact of obligations from the $5 billion authorizations for the fiscal year ending June 30, 1973, is in fiscal year 1975.
As a matter of fact, for fiscal year 1973 if all the money were obligated and placed under contract, there would only be $20 million needed to meet the obligations ....

Id. (emphases added). It seems clear that Congressman Harsha’s hypothetical concerning the obligation of the entire $5 billion requires an underlying assumption that all such sums must be allotted and thus available for obligation.

C. The Administrator’s Arguments

At this point we turn to an analysis of the Administrator’s arguments. We note that basically the Administrator argues an uncontested point, i. e. that the Administrator has control over the “rate of spending.” Indeed, as we have observed supra, the appellee agrees and there is much legislative history to support this view. The Administrator then argues that such conceded control over the “rate of spending” must mean control at the allotment stage. We disagree. In view of the seriousness of the question, we shall set forth the Administrator’s various arguments fully.

First, the Administrator argues, Congressman Harsha, after explaining that the effect of the amendments would be to “emphasize the President’s flexibility to control the rate of spending”, went on to state his belief that the President could “control expenditures” under the Act by the “same means” (commonly called “impoundment”) as he controlled expenditures under the Federal-Aid Highways Act 23 U.S.C. § 101 et seq. (1970). By this, the Administrator argues, Congressman Harsha meant that “impoundment” includes a reduction in “allotments,” as well as in “obligation.” Therefore, it is argued, he intended to indicate that discretion would be available at the allotment stage. (Appellant’s Brief at 11-12.) We cannot agree. As the Administrator concedes, the statement reproduced in the margin supra at note 26 “present [s] some difficulty in interpretation” (Appellant’s Br. at 12) because “impoundment” under the Federal-Aid Highways Act is achieved only by the limiting of contracts awarded (i. e. obligation). There is no possibility under that Act to reduce at the “allotment” stage. Whatever Congressman Harsha intended to explain, the two acts operate differently, and we believe that he could not have been arguing by analogy to discretion not conferred by the Highway Act. Congressman Harsha was referring to the obligation stage and not to allotment.

Next the Administrator attempts to explain the seemingly clear remarks of Senator Muskie that the Administrator must allot the full amounts authorized in section 207. The Administrator argues that the Senator’s statement “ ‘must be allocated’ . . . seems to contradict the changes in sections 205(a) and 207, which relate only to allotment.” (Appellant’s Br. at 14.) We find this statement, appearing without explanation, meaningless. Senator Muskie was, by his own words, explaining to the Senate what the amendments meant. His words do not contradict anything at all; rather they seem to be a straightforward explanation of those amendments.

Next, the Administrator argues that Senator Muskie’s remarks giving examples of instances where obligation may be controlled amount to a “non-example”. (Appellant’s Br. at 14.) We do not comprehend this argument. Senator Muskie gave as an example the situation where the obligation of funds for a particular project may be contrary to “other public policies such as the National Environmental Policy Act,” and thus monies would be properly withheld. The Administrator apparently feels that, since there exists elsewhere in the Act a power in the Administrator to disapprove projects which do not comply with NEPA, Senator Muskie could not have been speaking of control of rate of spending. To the contrary, we consider this a proper illustration of the stage at which Congress intended executive control, i. e. at the obligation stage. The Senator’s example supports this, and we understand it as such.

The Administrator alleges that Senator Muskie made a “serious error” in a colloquy with Senator Dominick during post-veto discussion of the Act. The appellant claims that the Senator’s statement that “there is plenty of flexibility in this bill for . . . the Congress to control spending” is at odds with the fact, not contested, that the statute does not permit “the Committee on Appropriations itself to set a limit on the amount committed under the statute.” Appellant argues, sub silentio, that Senator Muskie’s basic understanding of the funding mechanism is apparently not to be trusted, and therefore, his numerous statements as to mandatory allotment are not to be credited. We find no such “serious error.” In stating that the Appropriations Committee may “anticipate” the amount of contract authority under the Act, we agree with appellee that Senator Muskie was apparently doing no more than stating that the Appropriations Committee could report out a particular appropriations bill which would operate prospectively to limit the Administrator’s authority to obligate amounts less than previously allotted. Such a mechanism has been recognized by the Senate Appropriations Committee in at least one context. In any event, we are satisfied that Senator Muskie knew what he meant when, in the same dialogue with Senator Dominick, he reiterated his understanding that “ ‘all’ sums authorized to be obligated need not be committed, though they must be allocated.”

The Administrator next contends that the trial court’s finding that Congress intended control over the rate of “obligation and expenditure” and not over allotments must be erroneous because he asserts, “in terms of the impact on potential recipients control over allot-mensts [sic] and control over obligations would have the same effect.” (Appellant’s Br. at 21.) We disagree emphatically. Discretion over allotments necessarily confers discretion over the amount available to be spent and thus grants the executive the power to contravene the oft-stated legislative purpose to make federal money available. Could the Administrator allot $0? Happily, this is not the case, but the Administrator suggests no limit on his alleged discretion not to allot. Such authority would be greater than the power to control the rate of expenditures to which the sponsors repeatedly referred. Further, discretionary allotment would not be consonant with the overall concern, clearly expressed, of providing a total of $18 billion to combat water pollution. We find that discretion in obligation is distinctly different than discretion in allotment, and that it was only the former which this legislation was intended to confer.

Finally, the Administrator makes an argument to this court not made to the trial court. He does so apparently in response to the trial court’s findings and reasoning with regard to § 205(b)(1) of the Act, the “reallotment” provisions. The trial court’s statement of the perceived effect of § 205(b)(1) is reproduced in the margin. The Administrator contends that the trial court erred in its assumption that reduced allotments have the effect of irrevocably denying state authorization while reduced obligation does not because, it is contended, allotments can be “augmented”. (Appellant’s Br. at 21.) We think that this is but another vehicle for a now familiar argument, i. e. that “allotment” control is identical with “obligation” control. Therefore, appellant concludes, a construction such as ours, which considers them separately must be erroneous.

We need not and do not reach the merits of this contention concerning “augmentation”. The trial court’s reasoning appears to us to be correct. As to the contention of the Administrator, we further observe that the Act nowhere mentions any type of later augmentation procedure, and rather states in section 205(a) that “the allotment for fiscal year 1973 shall be made not later than .” (Emphasis added.) However, believing as we do that there is a clear distinction under the Act between allotment and obligation and that there can be no discretion as to the former, we find it unnecessary to consider whether an allotment could be “augmented” in a later fiscal year; full allotment must be made in each fiscal year.

D. Section 206(f) (1)

Having considered the contentions of the Administrator as to the proper meaning of sections 205 and 207, we turn to yet another consideration which we find strongly supportive of our decision. It is elementary that a statute must be construed, if it is possible, to give effect to all of the provisions. E. g., United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99 L.Ed. 615 (1955). Section 206(f)(1) of the Act allows the Administrator to obligate funds for a particular state’s project even if the funds allotted to that state have been fully obligated. This is possible provided' that “an authorization is in effect for the future fiscal year for which the application requests payment, which authorization will insure such payment without exceeding the State’s expected allotment from such authorization.” (Emphasis added.) Section 206(f)(1) would have scant operative effect if the “state’s expected allotment” could not be known because the Administrator had discretion to allot only a portion of such authorization. This is further evidence of a legislative purpose to make allotment mandatory. In keeping with the basic principal of statutory construction represented in Menasche, we can see no other way to preserve the force of § 206(f)(1), save mandatory allotment.

V. CONCLUSION

The only question before this court is whether the Administrator must make full allotments under the Act. Our reading of the relevant statutory language and careful analysis of the pertinent legislative history compells us to hold that § 205(a) of the Act requires the Administrator to allot the full sums authorized to be appropriated in § 207; therefore, the decision of the trial court is

Affirmed.

      . Russell B. Train, Administrator of the Environmental Protection Agency, has been substituted for William Ruckelshaus, the Administrator of the EPA at the time this action was commenced. Rule 43(c)(1), Fed. R.App.Proc.

      . We provide a list of cases filed as of December 12, 1973:
      Anthony R. Martin-Trigona v. William D. Ruckelshaus, N.D.Ill., Civil Action No. 72-3944;
      Campaign Clean Water, Inc. v. Ruckelshaus, E.D.Va., 361 F.Supp. 689, Civil Action No. 18-73-R, reversed and remanded, Campaign Clean Water, Inc. v. Train, 489 F.2d 492 (4th Cir., 1973) ; Brown v. Ruckelshaus, C.D.Calif., 4 Cir., 364 F.Supp. 258; Herbert C. Klein, et al. v. Ruckelshaus, D. D.C., Civil Action No. 151-73;
      State of Minnesota v. United States Environmental Protection Agency, et al., D. Minn., Civil Action No. 4-73 Civ. 133; Mayor Morton Salkind, et al. v. Ruckelshaus, D.N.J., Civil Action No. 2027-72;
      City of Los Angeles v. Ruckelshaus, C.D. Calif., 364 F.Supp. 258;
      State of Texas v. Fri, W.D.Texas, Civil Action No. A-73-CA-38;
      State of Maine, et al. v. Robert W. Fri, et al., D.Maine, Civil Action No. 14-51;
      Letter from National Association of Attorneys General to Impoundment Mailing List, December 12, 1973; see also Appellant’s Br. at 2-3.

      . Pub.Law 92-500, 86 Stat. 816, 33 U.S.C. ch. 26, § 1251 et seq.
      Title I of the Act provides in pertinent part:

        TITLE I — Research and related programs [Declaration of Goals and Policy]
      Sec. 101. (a) The objective of this Act
      is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act—
      (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
      (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;
      (3) it is the national policy that the discharge of .toxic pollutants in toxic amounts be prohibited;
      (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;
      (5) it is the national policy that area-wide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State;
      Title II of the Act (§§ 201-212) entitled “Grants for Construction of Treatment Works” provides in pertinent part:
      Allotment
      See. 205. (a) Sums authorized to be appropriated pursuant to section 207 for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later than 30 days after the date of enactment of the Federal Water Pollution Control Act Amendments of 1972. Such sums shall be allotted among the States by the Administrator in accordance with regulations promulgated by him, in the ratio that the estimated cost of constructing all needed publicly owned treatment works in each State bears to the estimated cost of construction of all needed publicly owned treatment works in all of the States. For the fiscal years ending June 30, 1973, and June 30, 1974, such ratio shall be determined on the basis of table III of House Public Works Committee Print No. 92-50. Allotments for fiscal years which begin after the fiscal year ending June 30, 1974, shall be made only in accordance with a revised cost estimate made and submitted to Congress in accordance with section 516(b) of this Act and only after such revised cost estimate shall have been approved by law specifically enacted hereafter.
      (b) (1) Any sums allotted to a State under subsection (a) shall be available for obligation under section 203 on and after the date of such allotment. Such sums shall continue available for obligation in such State for a period of one year after the close of the fiscal year for which such sums are authorized. Any amounts so allotted which are not obligated by the end of such one-year period shall be immediately reallotted by the Administrator, in accordance with regulations promulgated by him, generally on the basis of the ratio used in making the last allotment of sums under this section. Such reallotted sums shall be added to the last allotments made to the States. Any sum made available to a State by reallotment under this subsection shall be in addition to any funds otherwise allotted to such State for grants under this title during any fiscal year.
      (2) Any sums which have been obligated under section 203 and which are released by the payment of the final voucher for the project shall be immediately credited to the State to which such sums were last allotted. Such released sums shall be added to the amounts last allotted to such State and shall be immediately available for obligation in the same manner and to the same extent as such last allotment.
      Reimbursement and Advanced Construction
      Sec. 206.
      (f) (1) In any case where all funds allotted to a State under this title have been obligated under Section 203 of this Act, and there is construction of any treatment works project without the aid of Federal funds and in accordance with all procedures and all requirements applicable to treatment works projects, except those procedures and requirements which limit construction of projects to those constructed with the aid of previously allotted Federal funds, the Administrator, upon his approval of an application made under this subsection therefor, is authorized to pay the Federal share of the cost of construction of such project when additional funds are allotted to the State under this title if prior to the construction of the project the Administrator approves plans, specifications, and estimates therefor in the same manner as other treatment works projects. The Administrator may not approve an application under this subsection unless an authorization is in effect for the future fiscal year for which the application requests payment, which authorization will insure such payment without exceeding the State’s expected allotment from such authorization.
      (2) In determining the allotment for any fiscal year under this title, any treatment works project constructed in accordance with this section and without the aid of Federal funds shall not be considered completed until an application under the provisions of this subsection with respect to such project has been approved by the Administrator, or the availability of funds from which this project is eligible for reimbursement has expired, whichever first occurs.
      Authorization
      Sec. 207. There is authorized to be appropriated to carry out this title, other than sections 208 and 209, for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000 and for the fiscal year ending June 30, 1975, not to exceed $7,000,000,000.

      . It appears that there was a substantial gap between the amounts authorized and the amounts appropriated. The Senate Committee on Public Works, in its report on its version of the Act, observed that:
      The lack of adequate funding of grants to assist States and localities in constructing sewage treatment plants is causing critical problems. Of the $3.4 billion authorized for this purpose by the 1966 legislation, only $2.2 billion was appropriated. The backlog of projects eligible for Federal payments has reached a total of nearly $2 billion.
      S.Rep.No.82-414, 92nd Cong., 1st Sess. 5 (1971).

      . See S.Rep.No.92-414 supra at 35.

      . See Presidential Veto Message of October 17, 1972, 18 Cong.Ree. S 18534 (daily ed. October 17, 1972).

      . Letter from the President to Mr. William Ruckelshaus, dated November 22, 1972, J.A. at 15a.

      . 37 Fed.Reg. 26282 (December 8, 1972).

      . Not all commentators have agreed on a precise definition of “impounding”. Compare Boggs, Executive Impoundment of Con-gressionally Appropriated Funds, 24 U.Fla. L.Rev. 221, 222 (1972) with Note, Impoundment of Funds, 86 Harv.L.Rev. 1505 n.l (1973) and Fisher, Funds Impounded by the President: The Constitutional Issue, 38 Geo.Wash.L.Rev. 124 (1969). It is true that we are concerned here with the mechanism of contract authorization rather than direct appropriation. We today only decide whether the Act permits withholding of funds at the allotment stage. We will not, therefore, pursue the sematic argument that because of the different funding mechanism this is not an “impoundment of funds” but rather a “far more serious case.” See Brief of California Attorney General as Amieus Curiae at 6. The wisest course to leave the search for the proper definition of “Im-poundment” to the legal commentators.
      On the subject of impoundment generally, especially the constitutional problems, see also Note, The Likely Law of Executive Im-poundment, 59 Iowa L.Rev. 50 (1973) ;
      Comment, Presidential Impounding of Funds: The Judicial Response, 40 U.Chi.L. Rev. 328 (1973) ; Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale L.J. 1636 (1973) ; Miller, Presidential Power to Impound Appropriated Funds: A.n Exercise in Constitutional Decision-Making, 43 N.C.L.Rev. 502 (1965) ;
      Church, Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion, 22 Stan.L. Rev. 1240 (1970) ; Fisher, Presidential
      Spending Discretion and Congressional Controls, 37 Law & Contemp.Prob. 135 (Winter, 1972) ; Stassen, Separation of Powers and the Uncommon Defense: The Case Against Impounding of Weapons System Appropriations, 57 Geo.L.J. 1159 (1969).
      The legal literature contains no detailed analysis of the precise problem sub judiee. See Note, supra, 82 Yale L.J. at 1652; Note, supra, 59 Iowa L.Rev. at 55 n. 42; Note, supra, 86 I-Iarv.L.Rev. at 1526 n. 116.

      . The arguments of plaintiff-intervenor, City of Detroit, were found by the trial court to be “substantially the same” as those of plaintiff City, and so all arguments were treated together. City of New York v. Ruckelshaus, 358 F.Supp. 669 (D.D.C. 1973) ; J.A. at 53a n.3. We agree and will not differentiate between plaintiff and plaintiff-intervenor.

      . City of New York, supra note 10, J.A. at 56a-63a.

      . Tape of oral argument November 2, 1973, contains the following colloquy:
      Judge Wilkey: Would you like to elaborate upon the question of sovereign immunity?
      Counsel: As I understand the doctrine of sovereign immunity, as developing a close relationship between the merits and the doctrine. The exception to the doctrine which is claimed to be applicable by the plaintiff here is that the Administrator was essentially acting in violation of the statute, acting outside the scope of his authority, and therefore not acting on behalf of the sovereign but simply as an individual in excess acting outside the law who should be ordered to act within the law. Our contention is that he was acting within the statute, properly exercising his authority, therefore acting on behalf of the sovereign and if we are persuasive on the merits, then we should also win on the doctrine of sovereign immunity. The — ■ Now it may be and I .
      Judge: [Inaudible] appreciate any idea of sovereign immunity does it? If you go on that theory the sovereign is no better off than any other citizen.
      Counsel: I think we are getting close to that. There may survive a zone of plausibly legal activities where the government has a kind of special position — a certain deference that a court will find a kind of protection of sovereign immunity reaches somewhat beyond the very strictest construction of the statute. I find the present state of the law in somewhat of a turmoil and I think this circuit has developed a number of new doctrines which throw much of recent law into question, particulary the Scanwell case and I don’t think the Supreme Court has had the time to sort out the wisdom of that and the impact of that, and I—
      Judge: Are you reserving the sovereign immunity argument for the Supreme Court?
      Counsel: We are reserving the argument for the Supreme Court and we would be delighted, just delighted to prevail on it here.
      Judge: That doesn’t leave you much choice in that regard does it?
      Counsel: You mean to reserve it or to—
      Judge : Yes, to reserve it.
      Counsel: Obviously the problem of the position of sovereign immunity is one that impacts not just on this case but many, many cases for the government and we are in a position where we do not win frequently at the moment on the issue of sovereign immunity, but where it is not yet responsible for us not to urge it and hopefully there will be some more authoritative pronouncements from the Supreme Court within a few years that will clarify where we stand.

      . City of New York, supra note 10, J.A. at 56a-57a.

      . Appellant’s Reply Brief at 2.

      . “A Legislative History of the Water Pollution Control Act Amendments of 1972,” Committee Print, Committee on Public Works, 93rd Cong., 1st Sess., January 1973. Senator Muskie commented on the magnitude of the legislative task :
      I have been a Member of the Senate for 13 years, and I have never before participated in a conference which has consumed so many hours, been so arduous in its deliberations, or demanded so much attention to detail from the members. The difficulty in reaching agreement on this legislation has been matched only by the gravity of the problems with which it seeks to cope.
      118 Cong.Ree. S 16869 (daily ed. October 4, 1972).

      . See, e.g., First National Bank of Logan, Utah v. Walker Bank and Trust Co., 385 U. S. 252, 261, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966) ; Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395, 71 S.Ct. 745, 95 L.Ed. 1035 (1951).
      Congressman Harsha is the ranking minority member of the House Committee on Public Works which reported H.R. 11896. He was the bill’s floor manager and also a member of the conference committee which developed the final language of the Act.
      Senator Muskie is chairman of the Senate Subcommittee on Air and Water Pollution which reported S. 2770, the Senate version of the Act. He was floor manager for that bill and a member of the. conference committee.

      . Senator Cooper was the ranking minority member of the Senate Committee on Public Works and a floor manager of the bill.

      . Campaign Clean Water v. Rucklesliaus, 361 F.Supp. 689, 699 (EJD.Va.1973).

      . Senator Muskie’s use of the term “allocate” vice the term “allot” is of no import.
      Tlie Senate version of the bill had used the term “allocate.” Appellants concede this point. See Brief for Appellant at 14.

      . See Congressman Harsha’s remarks at 118 Cong.Ree. H 10268-69 appearing supra at 18.

      . Congressman Jones was Chairman of the House conferees and a floor manager for the bill.

      . See 118 Cong.Rec. at S 18546, S 18549 (daily ed. October 17, 1972). Senator Muskie illustrated his specific understanding that all funds would be allotted by introducing a table of proposed expenditures premised entirely on full allotment. His remarks:
      With respect to the budget impact, let me give the Senate just one more factor to be included in the Record, a table showing the expenditures projected under this bill. I ask unanimous consent that it be included in the Record at this point.
      There being no objection, the table was ordered to be printed in the Record, as follows:
      RATE OF EXPENDITURES BY FISCAL YEAR l 11st year, 5 percent of authorization; 2d year, 20 percent of authorization; 3d year-, 30 percent of authorization; 4th year, 40 percent of authorization; 5th year, 5 percent of authorization.
      UNDER AUTHORIZATIONS OF S. 2770 2 2 Fiscal year 1973, $5,000,000,000; fiscal year 1974, $6,000,000,000; fiscal year 1975, $7,000,000,000.

      118 Cong.Rec. S 18547 (daily ed. October 17,1972).

      . We note, for example, that the caption of the Administrator’s discussion of legislative history reads:
      O. The Legislative History of Sections 205 and 201 Makes it Clem• that Congress Understood that they were Designed to Confer Control Over the Hate of Spending on the Administrator'.

      Appellant’s Br. at 11.

      . See, e.g., remarks of Congressman Harsha at 118 Cong.Rec. II 9122 (daily ed. October 4, 1972) reproduced fully supra.

      . Id.

      . Furthermore, let me point out, the Committee on Public Works is acutely aware that moneys from the highway trust fund have been impounded by the Executive. Expenditures from the highway trust fund are made in accordance with similar contract authority provisions to those in this bill. Obviously expenditures and appropriations in the water pollution control bill could also be controlled. However, there is even more flexibility in this water pollution control bill because we have added “not to exceed” in section 207, as I indicated before.
      Surely, if the administration can impound moneys from the highway trust fund which does not have the flexibility of the language of the water pollution control bill, it can just as rightly control expenditures from the contract authority pr'odueed in (t)his legislation by that same means.

      118 Cong.Rec. H 9122 (daily ed. October 17, 1972) (emphases added). See also 118 Cong.Rec. H 10268 (daily ed. October 18, 1972).

      . Called “apportionment” in the Highway-Act. See 23 U.S.C. § 104 (1970).

      . We note that it is unclear whether Congressman Harsha was aware of the district court decision in State Highway Commission of Missouri v. Volpe, 347 F.Supp. 950 (W. D.Mo.1972), aff’d, 479 F.2d 1099 (8th Cir. 1973). If he had an understanding of that decision which did not allow impounding at the obligation stage, he would have known that the Highway Act, with its different mechanisms, could not be an analog to the Act here. We point this out only to say that while we endeavor to read his words as he spoke them, there was, in fact, a court decision then in existence which had fully and carefully analyzed the Highway Act.

      . The conferees do not expect these provisions to be used as an excuse in not making the commitments necessary to achieve the goals set forth in the Act. At the same time, there may be instances in which the obligation of funds to a particular project in a particular State may be contrary to other public policies such as the National Environmental Policy Act. In these cases the conferees would, of course, expect the Administration to refuse to enter into contracts for construction. 118 Cong.Rec. S 16871 (daily ed. October 4, 1972).

      . See § 203 of the Act.

      . Mr. Dominick. Is my understanding correct that the amount authorized here is still subject to the appropriation process?
      Mr. Muskie. Funds are made available through contract authority which is subject to the control of the President and also the Committee on Appropriations. Yes. As a matter of fact, may I say to the Senator that the conferees adopted an amendment proposed by Congressman Harsha to indicate clearly the intent of Congress with respect to that point.
      Mr. Dominick. And so the Committee on Appropriations could by its action determine what contract authority the President would have. Is that correct?
      Mr. Muskie. Under the amendments proposed by Congressman William Harsha and others, the authorizations for obligational authority are “not to exceed” $18 billion over the next 3 years. Also, “all” sums authorized to be obligated need not be committed, though they must be allocated. These two provisions were submitted to give the administration some flexibility concerning the obligation of construction grant funds. Mr. Cooper. Mr. President, will the Senator yield briefly? I would like to be sure we are clear on this matter.
      Mr. Muskie. I yield.
      Mr. Cooper. Did I understand the question of the Senator from Colorado to be whether the Appropriations Committee could set a limit on the amount to be obligated?
      Mr. Dominick. That is the question I asked. I understood from the Senator from Maine that the answer was in the affirmative ; that the Appropriations Committee could set that limit.
      Mr. Cooper. I thank the Senator. Out of this $24 billion $6 billion is not subject to contract obligation. Is that correct? Mr. Muskie. The Senator is correct. Mr. President, may I say in addition to the Senator from Colorado the amount of contract authority may be anticipated by the Appropriations Committee. That is, years in the future up to 1975 the Committee on Appropriations may set amounts which the administration may obligate in advance. So there is plenty of flexibility in this bill for the President and the Congress to control spending.
      Mr. Dominick. I think the Senator for clarifying the record.
      118 Cong.Rec. S 18546 (daily ed. October 17, 1972).

      . Appellee’s Br. at 28; Appellant’s Br. at 17.

      . See Senate Committee on Appropriations, Department of Transportation and Related Agencies Appropriations, S.Rep.No. 92-271, 92nd Cong., 1st Sess. 25-6 (1971).

      . City of New York v. Ruckleshaus, supra n. 10, J.A. at 66a.

      . See, e.g., text at 12-19 supra.

      . Of course, it could be argued that discretion at any stage could contravene the basic purpose of the Act, i.e. to provide $18 billion to meet the pollution problem. We express no opinion as to whether or to what extent the Administrator could legally withhold funds at the obligation stage; that question must await future resolution. Compare Georgia v. Nixon, No. 63, 414 U.S. 810, 94 S.Ct. 25, 38 L.Ed.2d 45, Original, motion denied, (1973). See n.39 infra.

      . Another feature of the Act which is of some importance in the resolution of issues before the Court is the reallotment provision in § 205(b)(1) of the Act. Once allotted to a State, sums are available for obligation for approved projects there “for a period of one year after the close of the fiscal year for which such sums are authorized.” If for any reason the sums allotted are not fully obligated within that period, they are to be reallotted “generally on tlie basis of the ratio used in making the last allotment of sums under this section.” Such reallotment sums remain available for obligation and are added to the State’s allotment for the next fiscal year. Any sums authorized but not allotted at the appropriate time are lost to the State under the provisions of this Act. Thus, by refusing to allot the full sums authorized, the Administrator controls the absolute amount (as opposed to the rate) of spending without regard to the standards set forth in, e.g., § 204, for determining whether sums should be obligated.
      New York City v. Ruekleshaus, supra n. 10; J.A. at 55a.

      . Accord, Campaign Clean Water v. Ruckleshaus, 361 F.Supp. 689 (E.D.Va.1973) reversed on other grounds, Campaign Clean Water v. Ruekleshaus, No. 73-1745 (4th Cir. December 10, 1973).

      . There is no constitutional question in this case. Both sides have agreed that if this court determines that the Act requires full allotment there remains no constitutional power in the executive to limit the allotments because, in the words of appellant, “Allotment ... is not an act that of itself commits the government to any obligation.” (Appellant’s Reply Br. to Supplemental Br. of Appellee at 2.) Bee also Supplemental Br. of Appellee at 3-6. Compare Georgia v. Nixon, et al., No. 63, 414 U.S. 810, 94 S.Ct. 25, 38 L.Ed.2d 45, Original, motion denied, (1973) which attempted to raise the question of the constitutionality of refusal to obligate.

      . $5 billion for fiscal year 1973 and $6 billion for fiscal year 1974.


source: Caselaw Access Project

author: WILKEY, Circuit Judge: FAHY, Senior Circuit Judge

license: Public Domain

text:
    UNITED STATES of America v. James T. SKEENS, Appellant.
    No. 72-1582.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 19, 1973.
    Decided Jan. 28, 1974.
    Rehearing Denied March 11, 1974.
    Fahy, Senior Circuit Judge, filed opinion concurring in part and dissenting in part.

      Dorothy Sellers, Washington, D. C. (appointed by this Court) for appellant.
    Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Charles R. Work, Asst. U. S. Attys., were on the brief, for appellee. Roger M. Adelman, Asst. U. S. Atty., also entered an appearance for ap-pellee.
    Before FAHY, Senior Circuit Judge, WISDOM, Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   WILKEY, Circuit Judge:

Appellant in this case was tried and convicted of robbery and assault with a dangerous weapon. He alleges five distinct grounds for reversal on appeal. We find that they are all without merit and that the convictions should be upheld.

1. The validity of the identification.

Appellant alleges that he was deprived of due process of law because the identification procedures used were unduly suggestive. The complaining witness confronted appellant in a situation which we shall assume for the sake of argument to have been suggestive. Even so, the in-court identification was not fatally flawed because the witness had originally identified appellant from photographs in a situation that was not unduly suggestive.

The identification in this case occurred prior to the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and, therefore, is admissible if .the factors surrounding it indicate that it is reliable. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In this situation there are two factors that tend to show reliability: (1) The complaining witness got a very good look at the robbers at the time of the robbery. The crime occurred in broad daylight, and the detail of his description of the robbers indicates that his opportunity to see them was good. (2) There was a positive identification of a recent photograph of appellant by the victim prior to the arguably unlawful encounter at the Commissioner’s when defendant Skeens was accompanied by one Reichert, an alleged co-participant in the crime. This was the witness Swindler’s first look and first identification of Reichert, but not of Skeens. In fact Reichert’s motion to suppress this identification was granted, precisely because Reichert had been first identified in a one-on-one confrontation (“a textbook Stovall,” in the words of the trial judge) accompanied by “a second man (Skeens) who has already been positively identified as a participant in the crime.” It was the validity and positiveness of the witness’ previous identification of Skeens which was a strong ground for suppressing the identification of Reichert, first displayed in the company of Skeens.

Now it is the validity of the identification of Skeens which is under attack. That identification came about in this way. The police placed a large number of slide photographs in a carousel projector, timed to display each photo a few seconds, then automatically move on to the next. Police officers were in and out of the room, not necessarily being with the witness Swindler at all times as he sat viewing the slides being flashed on the screen. Swindler uttered a remark indicating a tentative recognition when the slide of Skeens was flashed on. He had not given any hint of recognition of any other photo. The officers questioned Swindler; he was not certain at this time. One officer remembered there was a more recent photo of Skeens; this was placed in the projector in a random order with other undisplayed slides and flashed on at automatic intervals. This time the more recent photo elicited a much more positive identification from Swindler. Exactly what he said is a matter of dispute in the testimony, but it was strong enough to persuade the officers to seek an arrest warrant for Skeens, whom previously they had had no cause to suspect. And it was strong enough to persuade the District Judge ruling on the motions to suppress to say “Indeed, had the affidavit recited only the facts as defense counsel alleges them to have been at the time of the picture identification, there still would have been probable cause to issue the arrest warrant.”

It is hard to imagine a more objective police identification procedure. Yet, appellant Skeens alleges that this photographic identification was flawed because a police officer made mention of appellant’s recent release from prison prior to the positive identification. There is a dispute in the testimony regarding whether this reference was made after a tentative identification of the older photo of appellant or after the positive identification of the later one. Even if the reference occurred before the positive identification, appellant had no way of knowing that the photo he positively identified was that of appellant. The record shows that the photo the victim did identify was placed in the slide projector in a random order and that it was not called to the witness’ attention when it flashed on the screen. We believe that the factors given here are sufficient to show that the in-eourt identification was reliable.

2. The grand jury proceeding.

Appellant argues that he was unduly prejudiced by prosecution statements at the grand jury proceedings. The record reveals that most of the questioning was done in an effort to impeach certain statements made by appellant’s wife. In this context they do not appear to be as prejudicial as appellant argues. Under no circumstances could they be viewed as being as prejudicial as those attacked in Coppedge v. United States, 114 U.S.App.D.C. 79, 82-83, 311 F.2d 128, 131-132 (1962). In that case the court upheld an indictment even though it was based in part upon perjured testimony. Appellant has not shown that the grand jury was improperly constituted or that there was not sufficient evidence on the whole record to support the indictment. This argument must, therefore, fail.

3. Prejudice from delay.

Appellant contends that he was unduly prejudiced by the 21-month delay between his arrest and trial. Under the decision in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we are admonished to consider four factors in evaluating such a contention: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the resulting prejudice to the defendant. In this ease appellant did not assert his right until much of the delay complained of had occurred. The record also reflects that much of the time it took to decide various defense the delay complained of was caused by motions. We also conclude that appellant was not substantially prejudiced by the delay in this case. The nine months’ incarceration following his arrest was due to appellant’s parole being revoked on another charge. Any prejudice due to the death of appellant’s wife was ameliorated, at least somewhat, by the Government’s offer to let appellant use the transcript of the wife’s testimony at the grand jury. In any case, most of the delay up to the time of the wife’s death was attributable to appellant; any prejudice on this count is a consequence of appellant’s own action.

4. Statements by prosecution during trial.

Appellant complains that three statements by the prosecution or witnesses so prejudiced appellant that we must overturn his conviction: (1) During the opening argument, the prosecution allegedly stated that it would prove more than it actually did. Admittedly, not.everything alleged was proved in the Government’s case in chief. It appears, however, that a police officer called as a hostile witness by the defense did testify to everything which had not already been shown; thus it is impossible to see how appellant could have been prejudiced by these allegations. (2) Appellant contends that mention by a police officer, who testified for the defense as a hostile witness, of an alleged attempt by the appellant to have the complaining witness murdered is grounds for reversal. Appellant’s counsel had not admonished the witness not to mention this subject. More significantly, appellant’s trial counsel rejected an offer of a mistrial. Under these circumstances, this mention is not reversible error. (3) The final comment was made by the same police officer who had been called as an adverse witness by the defense. The officer mentioned a fact that the trial judge had specifically ordered the attorneys not to mention during the trial. This revelation was inadvertent. In addition, the witness had never been instructed not to mention the matter by the defense counsel who called him.

5. Admissibility of polygraph examination.

Appellant argues that the trial court erred in failing to conduct an evidentiary hearing on the admissibility of a polygraph test that allegedly supported his innocence. The leading ease in this Circuit is Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), which holds such tests inadmissible. This case has been followed uniformly in this and other Circuits and there has never been any successful challenge to it in any federal court.

The conviction is

Affirmed.

FAHY, Senior Circuit Judge

(concurring in part, dissenting in part) :

This case presents difficult problems for me. I agree with the majority opinion that the indictment need not be dismissed due to the conduct of the prosecution in examining appellant’s wife before the Grand Jury which returned the indictment. I must add, however, that I think the examination was inexcusably abusive and oppressive.

I am also troubled by the twenty-one month delay between arrest and trial. In the interim appellant’s wife died, resulting in prejudice to his defense. He was deprived of her support to his alibi defense. The time of the offense in relation to his whereabouts as testified by his wife before the Grand Jury and by other witnesses made the alibi defense a credible one. As the opinion of the court states, however, the resulting prejudice was ameliorated by the offer of the Government to make available at trial her relevant Grand Jury testimony. The likelihood of prejudice would not thereby have been entirely eliminated, for if living she might effectively have persuaded the jury by her live testimony. The reason I find the delay not ground for directing the District Court “to set aside the judgment, vacate the sentence, and dismiss the indictment,” Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2264, 37 L.Ed.2d 56 (1973), is that much of it was due to the necessity of disposing of appellant’s pretrial motions.

My uneasiness about the trial is increased by prejudicial trial statements of a witness, to whom I shall refer as Officer B. One such statement which flawed the trial, but not fatally, grew out of appellant’s statement to the arresting officers at his home that he was “alone with the children.” Hearing a cough in another part of the house the officers, one of whom was Officer B, discovered and arrested Reichert as one of the two robbers. Before trial the court ruled that this statement of appellant would not be admitted because he had not waived his right to counsel. The prosecutor promised the court he would advise Officer B of this ruling to ensure that the statement would not be inadvertently revealed. Officer B nevertheless did disclose the statement during the course of his testimony at trial.

Perhaps more seriously prejudicial were the reasons given by this officer at trial for his arrest of a third suspect. He gratuitously seemed to imply that appellant had hired the suspect to kill Mr. Swindler, the victim of the robbery and the only identifying eyewitness. Defense counsel, however, refused the Government’s offer of a mistrial, apparently feeling that the prosecution itself was desirous of such a result.

There is also the puzzling elimination of the Federal Bureau of Investigation from full participation in the investigation, attributable to the statement by Officer B to the F.B.I. Agent, Harker, that the robbery did not involve the theft of more than $5000.00, which led to the agent’s withdrawal. This statement by Officer B was made sometime after Mr. Swindler had tentatively identified the first photograph of appellant on May 15, 1967. An affidavit for a warrant to arrest appellant, subsequently drawn up by the investigating police, states that “$15,211.72 in assorted cash and checks . . .” was stolen. Before his withdrawal the agent witnessed enough of the photographic identification by Mr. Swindler to enable him at trial to give critical testimony about it, inconsistent with that of Officer B, as will appear.

In connection with all of the foregoing I also note with uneasiness the shadow cast upon the trial by the circumstance that appellant had been a government informer, in which capacity he had aided in the conviction of four police officers of a bribery conspiracy. See, Wallace v. United States, 134 U.S.App.D.C. 50, 412 F.2d 1097 (1969). Officer B had also been investigated by a Grand Jury before which appellant and his wife had testified, and while he had not been in-by this Grand Jury and was convicted dieted, a close friend had been indicted ten days before appellant’s arrest.

Notwithstanding my skepticism about the fairness of the trial, some of the reasons for which I have outlined, I would affirm without more, in view of the evidence as a whole, if satisfied as to the procedures which led to the in-trial identification of appellant as one of the two robbers. But I am not satisfied in that respect. Since the occurrences were before the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the United States correctly points out that the due process standard of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967), governs with respect to the identification. It is therefore a question whether the pretrial procedures were “unnecessarily suggestive and conducive to irreparable mistaken identification.” 388 U.S. at 302, 87 S.Ct. at 1972. I think this requires at least further consideration by the District Court for reasons now to be explained.

On the day of the robbery, May 15, 1967, Mr. Swindler was taken to the Robbery Squad to view photographic slides of possible suspects. The following is his testimony at the Preliminary Hearing on May 23, 1967, regarding his recognition of a picture of appellant in the screen-showing of slides:

A [Mr. Swindler]: I said, “it
looks like one of the men, the shortest man that held me up.”
******
Q [Defense Counsel]: Nobody said anything when you said, “That looks like the man.” ?
A He [Officer B] asked me if I am sure and I said, “No, I’m not sure, it looks like him.”
Q Then what happened ?
A He said, “I am going to pick him up.” And I said, “I’m not sure, it looks like him.” One officer said to the other officer, “We have a later picture of him in there, can you find it?” He said, “We should have one around here somewhere.”

When the second picture of the same man came on the screen, his testimony is as follows:

Q Did you recognize the second picture as being the picture of the first man you had seen in the slide?
A Correct.
Q What was your reaction when you saw the second picture?
A I told them it still looked like the same man I seen on the other picture.
Q You weren’t any more positive about it than the first picture, is that correct ? J
A I said he looked much better. One picture was clearer than the other picture.
Q What was said to you by any of the officer present after that ?
A He says, “He ain’t too long been out, he’s been released.” He didn’t say when but he said, “He’s out on the street.”
Q Then you—
A I said, “Well, that looks like the man that held me up, the shortest one.”
******
Q And after you were told that it hadn’t been too long since he had been out, did he [Officer B] ask you if you were positive?
A Yes.
Q And that is when you stated you were positive, is that correct ?
A I says, “If I see them both together I could identify them much plainer but he do look like the shortest man that held me up.”
******
Q That’s about the best you can commit youself?
A I don’t know if it’s the best but he had the same hair on his head and everything.

At the hearing on appellant’s pretrial motion to suppress identification testimony, November 3, 1967, conducted by a judge other than the trial judge, F.B.I. Agent Harker personally testified about the same proceedings as follows:

THE COURT: After your arrival were you there when Skeen’s picture was shown to the witness ?
THE WITNESS: Yes sir.
-K •* * -X- * -X-
He said words to the effect, I believe that is the man. I think that is the man. Or, I don’t know if those were his words but they were words which he might characterize as tentative or possibly identification or something to that effect.
Q [Defense counsel]: Did he ever state that he was positive that the man in the picture, that the picture was of Mr. Skeens, who held him up or one of the men who held him up that day?
A Not at the time I was present.
Q Was he asked if he was positive or not positive ?
A Yes.
Q And did he respond in the negative?
A I don’t know whether he just said no, but my recollection is that he continued to repeat the somewhat equivocal phrases. I think he used those to that effect without saying I am positive that is him.
seemed to indicate or he did indicate I believe or he felt that this was the individual. And then he was asked why by one of the others and 1 am not sure whom, are you sure that is the man? Are you positive that is the man? And he answered No up to the point — he seemed to think it was the man and whenever we discussed the fact is this the man, or do you think it was the man? He thought it was the man up to the point of being absolutely positive or absolutely certain. Up to that point he seemed to be enthusiastically
thinking and feeling it was the man up to that point but he could not be absolutely positive. . . .
* * * *
TnE COURT: And you did not feel that part of the procedure which had to do with Skeens’ picture was something of a re-run? In other words, you had the feeling he had had some sort of a positive reaction to this picture before you came in?
THE WITNESS : Either I had that feeling from what he said before or maybe they had gotten me aside and told me he had partially identified Mr. Skeens.

According to Officer B’s testimony, however, Mr. Swindler had identified both photographs positively, but the police “backed him down” on his identification of the first photograph.

The hearing on the motion to suppress was continued in order to have the testimony of Mr. Swindler at the Preliminary Hearing transcribed. After considering that testimony at the resumed hearing on December 1, 1967, the judge several times expressed doubt concerning both the arrest and identification of appellant, concluding with these comments :

THE COURT: . . . [T]he man [Mr. Swindler] says he [appellant] looks like the man [the shorter robber], I [Mr. Swindler] am not certain of the man [appellant]. So far as I [the court] am concerned that is not enough basis for arresting a man.
If I am held up and I look at some pictures and I say, this looks like the man but I am not certain, I do not think you have any right to go out and arrest the man for that reason.
THE PROSECUTOR: I think so.
THE COURT: And neither did the officers think so and that is why the affidavit [accompanying the arrest warrant] looks like it does.
I will take it under advisement.

My conclusion from the foregoing is that the photographic identifications were only tentative when made, as the judge and the F.B.I. Agent said. Mr. Swindler was not positive. This is important because the judge who presided over these hearings on the motion to suppress did not rule on the motion until March 25, 1968, at which time, without stating his reasons, he denied the motion.

Later, in a Memorandum accompanying his order of July 2, 1968, granting Reichert’s motion to suppress, the reasons the judge had in mind for denying appellant’s like motion might appear from the following: at a hearing on Reichert’s motion on March 29, 1968, Mr. Swindler testified that the morning after the robbery he was brought to a room at the United States Commissioner’s offices, not the courtroom “where they were trying” cases, but a waiting room. Appellant’s preliminary hearing had been scheduled for that day but was postponed at counsel’s request. Nevertheless, after he had been waiting there about an hour Officer B took him to the doorway to the Commissioner’s office and while standing there Mr. Swindler saw some people come through the doorway from another room, apparently the cell block. Among them were appellant and Reichert, together. Thereupon Mr. Swindler, who the day before at the photographic proceedings had expressed the desire to see the suspects together, told Officer B that they were the two men who robbed him. At the conclusion of Mr. Swindler’s testimony as to how this confrontation occurred, the judge commented: “. . . if I have ever seen a Stovall . . ... This is a text book Stovall,” an identification procedure which violated due process of law. In his order of July 2, 1968, however, in granting Reichert’s motion to suppress, the judge stated: i

Earlier, the defendant Skeens filed an identical motion, to suppress testimony relative to his identification, at the hearing thereof it was urged that any identification made in court would be so tainted by suggestive factors as to constitute a denial of due process. Since Skeens had been originally identified by means of a photographic identification procedure which was not suggestive in any fashion the court was not persuaded, and so denied his motion.
But this is not the case insofar as Reichert is concerned. Here, we have the presentation of one suspect in custody of the authorities, and in company with a second man who has already been positively identified as a participant in the crime.

In denying appellant’s motion he thus apparently had concluded that Mr. Swindler previously had positively identified appellant by the photographs — which seems clearly not to have been the case. Moreover, at trial the Government itself stated to the trial judge regarding the confrontation on May 16,

[The Prosecutor]: In other words, the only reason we are here today on the defendant Skeens is that [the judge] ruled that his identification was based upon an independent source and he held that the confrontation at the Commissioner’s was a due process violation.
******
A fortiori it would be a due process violation as to the defendant Skeens [as well as Reichert] also there at the same time (Emphasis added.)

Appellant twice renewed before the trial judge his motion to suppress the identification testimony on the ground that the judge who had ruled on the pretrial motion had erred in concluding that appellant had been positively identified by photograph. Neither the trial judge nor counsel, though aware that appellant’s motion to suppress had been denied, appears to have known when this had occurred, or the basis for it. The trial judge stated, “I have to decide that there was ample reason for [his] decision that Mr. Skeens had been properly identified outside of the confrontation.”

It is possible that the motion judge’s Memorandum of July 2, 1968, in the Reichert case, which referred to a positive identification of appellant, placed some reliance upon the affidavit accompanying the arrest warrant. This affidavit, as we shall see, misstated the nature of Mr. Swindler’s identification. Moreover, the motion judge’s reference to the positive character of the photographic identification conflicts with his own opinion expressed seven months earlier at the hearing on December 1, 1967, when he characterized the identification as uncertain. Between then and the order of March 25, 1967, denying appellant’s motion, no new evidence was adduced. In then reaching a different conclusion, even if the judge could be thought to have relied on Officer B’s testimony of the previous November 3, to which he had not given full credence, it would not in my opinion obviate a different course from that I conclude should now be followed, to be set forth at the conclusion of this opinion.

Reverting now to the affidavit accompanying the warrant for the arrest, referred to above, it was later, on October 31, 1968, appraised also as follows by a different judge who had the responsibility of considering the validity of the arrest warrant:

Mr. Swindler made an identification of Defendant Skeens, from pictures, as one of the two men who robbed him. It was not as positive or unequivocal an identification as the affidavit describes, but it was an identification on which a finding of probable cause could reasonably be predicated. When shown the second picture, Mr. Swindler may not have jumped up from his chair and stated decisively, “That’s him!” However, this does not vitiate the fact that an identification was made, though one more tentative than that described in the affidavit. In sum, the affidavit was an exaggeration of the facts, but it was not “consciously false”; it does not “unequivocally demonstrate the absence of probable cause to arrest Skeens.” Indeed, had the affidavit recited only the facts as defense counsel alleges them to have been at the time of the picture identification, there still would have been probable cause to issue the arrest warrant. (Footnote omitted.)

Obviously “probable cause “positiveness.” The judge based his probable cause conclusion on the testimony of Mr. Swindler at the Preliminary Hearing of May 23, 1967, which had been considered on December 1, 1967, by the pretrial motion judge, who had then also concluded that Mr. Swindler’s testimony was not a positive identification of appellant. ’ is not

From the overall factual situation above analyzed I cannot conclude with any degree of confidence that the mistake as to the character of the photographic identifications, considered with the suggestive show-up at the Commissioner’s office, does not require the admissibility of appellant’s identification by Mr. Swindler at trial to have been based on a source independent of the photographic and “Stovall” procedures, which was not done. The difficulty is not remedied by the course of the trial itself, for it is clear the trial judge relied heavily on the questionable pretrial denial of appellant’s motion.

It seems to me the matter should at least be clarified. This can be done by a remand for a redetermination of the admissibility of the in-court identification made by Mr. Swindler, taking into consideration the analysis of the scattered evidence bearing thereon which I have tried to pull together in this opinion. Should the court find on the basis of the present record that the in-eourt identification by Mr. Swindler (1) rested upon a source independent of the photographic and “Stovall” identifications, or (2) that neither the apparently tentative character of the photographic identifications, nor the “Stovall” identification of May 16, 1967, would alter the conclusion of the District Court that the in-court identification was admissible, as not tainted by unnecessarily suggestive pretrial identification procedures, then the judgment of conviction would not be disturbed.

Should the court, on the other hand, be unable to make a finding of either (1) or (2) above, a new trial should be ordered, in which event the Swindler identification testimony would be admissible at trial only upon a clear and convincing showing that it would rest upon a source independent of either the previous photographic or “Stovall” procedures, that is, upon Mr. Swindler’s recollection of the events and the participants therein at the time he was robbed. United States v. Sanders, 156 U.S.App. D.C. 210, 479 F.2d 1193 (1973).

This court should in my opinion retain jurisdiction pending the result of such a remand.

      . The brother of one of the arresting officers had also been convicted as a result of information supplied by appellant.

      . On cross-examination of the agent by the prosecutor he said that when appellant observed the picture he

      . At the hearing of December 1, 1967, appellant’s counsel advised the judge that he had informed Officer B that he had requested a postponement of the Preliminary Hearing and that the Commissioner had agreed. Subsequently, the case was formally postponed for one week. Apparently after Officer B had spoken with defense counsel, he brought Mr. Swindler to the entrance to the Commissioner’s office, opposite the cell block, although Mr. Swindler’s presence was no longer required.
      Further doubts are cast upon the non-suggestive character of this confrontation, and upon the trustworthiness of Officer B’s testimony, by the following circumstances: he said Mr. Swindler was seated in the outer office of the Commissioner’s hearing room because the hearing room was crowded and packed, and after some little while he took Mr. Swindler through the Commissioner’s private office. However, Mr. Sherbacow, who was the attorney for Skeens at the time, and at the time of the trial was an Assistant U. S. Attorney in the District of Connecticut, testified there weren’t very many people at all in the hearing room,

      . For this reason the Government opposed the introduction into evidence of testimony concerning this confrontation. Defense counsel, however, sought its introduction when the trial court denied his motion to suppress the in-court identification by Mr. Swindler. Evidence of the confrontation was allowed upon waiver by defense counsel of objections to its use. This waiver was not intended by defense counsel to waive his exception to the previous denial of appellant’s motion to suppress the in-court identification. Indeed during the course of trial, counsel renewed his motion, which was not opposed by the Government on the ground of waiver.