(concurring in part and dissenting in part):

I concur in Section II (Standing) and Section III (Convictions of Light and Virginia Pope) of the court’s opinion, but respectfully dissent from the holding in Section I that the wiretap was invalid.

As noted in the court’s opinion, the Court of Appeals for the Second Circuit in United States v. Pisacano, 459 F.2d 259 (1972), was concerned with the validity of wiretaps where the procedure in obtaining the court order was essentially the same as that followed in this case. The court, in an opinion by Judge Friendly, held that the use of wiretaps resulting from the court order did not warrant reversal of the conviction. As a member of the panel in Pisacano I concurred in Judge Friendly’s opinion and adhere to the views therein expressed.

In Pisacano the appellants relied upon the decision of the Fifth Circuit in United States v. Robinson, 468 F.2d 189 , where the opinion had been filed on January 12, 1972. 1 Apparently Robinson was the first of many cases in which the procedures followed by the Department of Justice in electronic surveillance have been challenged. 2 In Robinson the court reversed a conviction based upon wiretap procedures similar to those in Pisa-cano and the instant cases and remanded to the district court with directions to dismiss the indictment. Subsequent to the decision m Pisacano and other cases involving the validity of interception orders, Robinson was reheard by the court en banc after the United States had filed a supplemental appendix containing additional affidavits and exhibits.

On January 16, 1973 in a per curiam opinion Robinson was remanded “to the district court fqr an expedited eviden-tiary hearing to determine whether the wiretap applications * * * were properly authorized under 18 U.S.C.A. 2516(1)”, the district court to “make findings of fact and conclusions of law” to be transmitted to the appellate court. (472 F.2d at 974.) Nine members of the court joined in the order. Six, including the three members of the initial panel, dissented, urging “that the original and supplemental affidavits present all of the evidence relevant to the proper interpretation of the Department’s action vis-a-vis Congress’ § 2516(1) intent as to how wiretap authorizations should be initiated” and “that conceding all that is sworn to, compliance with the statute is still wanting under the panel view.” (472 F.2d at 976)

The majority opinion noted that, “The unusual importance of the issue is underscored by the number of courts that have dealt with it since publication of the panel decision.” (472 F.2d at 974) Both opinions cite cases which have followed the panel decision in Robinson or otherwise resolved the authorization issue against the Government and other cases which have held contrary to Robinson (including Pisacano) or distinguished the authorization procedures from those followed in Robinson . 3

*510 There are no substantive differences in the content of the affidavits set out in the majority opinion and those appended to the dissenting opinion in Robinson . The same procedures were followed. Here, however, the affidavits and procedures were considered by the district court in ruling on a motion to suppress on the ground of newly discovered evidence filed subsequent to the guilty verdicts and prior to imposition of sentence. 4 Following a hearing the motion to suppress the wiretap evidence was denied, without formal findings or opinion. 5

The records in Robinson, Pisacano and the instant cases all contain affidavits of Sol Lindenbaum, Executive Assistant to the Attorney General. In addition the record here contains an affidavit of John N. Mitchell, Attorney General, quoted in full in the court’s opinion. This affidavit confirms and clarifies the policy of the Attorney General set out in the other affidavits.

While 18 U.S.C. § 2516 (1) permitted the Attorney General to specially designate any Assistant Attorney General to authorize applications for wire interceptions without his approval, the Attorney General “chose not to make such designation, but rather to require that all requests for authority to file such applications be forwarded to (him) for consideration.” This was intended to centralize in the Attorney General “responsibility for and control of the policies to be followed by the Department of Justice in relation to Title III. . . . ”

All requests for authorization to apply for wire interception orders were “subject to intensive review in the Criminal Division of the Department of Justice” and forwarded to the Attorney General with a written recommendation of the Division for approval. All requests were then reviewed by Sol Lindenbaum, Executive Assistant, and transmitted to the Attorney General with his recommendation.

“Somewhat more than a year” after the Department first utilized the provisions of Title III, the Attorney General “authorized (his) Executive Assistant to act on (his) behalf on requests that might be transmitted at a time when (he) was not available to act on them.” The affidavit continues: “I gave him this authority in the light of his familiarity with my policies and with my decision on all requests that had been previously submitted to me. My subsequent review of eases in which he approved requests on my behalf confirmed that he followed my policies.”

As the court said in Pisacano:

As stated in the court’s opinion, “The evidence of guilt derived from the wiretap is overwhelming.” I agree that this in itself is not sufficient to sustain a conviction. It does, however, reenforce my reluctance to join in the opinion, in view of the fact that the Attorney General personally assumed full responsibility for what was done and there is no suggestion that the papers accompanying the request to the Executive Assistant were not sufficient to warrant the application for the interception order. 6

A close and difficult problem is presented. Certainly plausible reasons have been advanced for both interpretations of the provisions of § 2516(1). 7 In view of the clear conflict in the circuits, it is obvious that the issues will be resolved ultimately by the Supreme Court. A petition for certiorari in United States v. Pisacano was filed on April 28, 1972 and a petition in the subsequent Second Circuit ease of United States v. Becker, 461 F.2d 230 , was filed on July 28, 1972. There has been no ruling on either petition. While I would prefer to await the decision of the Supreme Court on the pending petitions, in the absence of such a ruling I adhere to Pisacano for the reasons stated therein. 8

I would affirm all of the convictions.

. The appeal from the decision of the district court, United States v. Escandar, 319 F.Supp. 295 , (S.D.Fla.1970) “was intended to raise the constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968”, but “with the development of facts unknown until the case was before” the appellate court, it turned out “to present only the question of who may initiate an application to engage in * * * secret electronic surveillance under the authorization proviso of that legislation.” 468 F.2d at 190 .

. After the procedures had been challenged in Robinson and beginning November 20, 1971 the Attorney General “personally authorized all applications for interception orders * * ' * presented to Federal judges pursuant to 18 U.S.C. 2516(1).” Aff. of John N. Mitchell quoted in majority opinion.

. The dissenting opinion noted that four other circuits and at least 13 district courts had delivered opinions dealing with the authorization procedures of the Department of Justice; that 13 additional *510 unreported decisions of district courts were pending appeal in six circuits; and that the Department of Justice had informed the court that 92 cases were pending in 29 different district courts in which the issue of the authorization of wiretap applications had been raised. (472 F.2d at 975-976, note 1)

. While the misstatements in the authorization applications first came to light after convictions in all of these cases, in Pisacano (following pleas of guilty) and King et al. (following jury verdicts in jury trials or findings of guilt by the court) the procedures were questioned in the district court. In Robinson the issue was first raised in the appellate court.

. Other motions relating to the wiretap surveillance had been considered by the district court in a written opinion prior to trial. 335 F.Supp. 523 (S.D.Cal.1971)

. Even though the application to the district judge misstated the authorization procedure, as noted supra, a second district judge who tried the case, after being fully apprised of the procedure actually followed, denied the motion to suppress the wiretap evidence.

. Senate Report No. 1097, referred to in opinions supporting both interpretations, contains this paragraph:

. In United States v. Becker, supra, 461 F.2d at 236 , the court stated that an adherence to the law as set fortli in Pisacano should “not be construed as an approval of the procedure followed by the Attorney General and his staff * * The same is true here. Even though I find no evidence of bad faith or reliance upon insufficient evidence in seeking the interception orders, I do agree that it is unfortunate that the Department of Justice did not comply more strictly with the statutory provisions. As stated in Mr. Mitchell’s affidavit, the procedure has been discontinued and all applications since November 20, 1971 have been approved personally by the Attorney General.