author: PER CURIAM:

text:
    UNITED STATES of America v. Arthur B. KNIGHT, Appellant. UNITED STATES of America v. Robert L. JOHNSON, Appellant. UNITED STATES of America v. Haywood T. KIRKLAND, Appellant.
    Nos. 73-1271, 73-1272 and 73-1274.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 5, 1974.
    Decided Dec. 13, 1974.
    Rehearing Denied Jan. 14, 1975.

      Regina C. McGranery, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and David G. Latimer, Asst. U. S. Attys., were on the brief, for appellee.
    Michael A. Mulroney, Washington, D. C. (appointed by this Court), was on the brief, for appellant in No. 73-1271.
    Walter D. Haynes, Washington, D. C. (appointed by this Court), was on the brief, for appellant in No. 73 — 1272.
    John A. Shorter, Jr., Washington, D. C., for appellant in No. 73-1274 and argued for all appellants.
    Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
   PER CURIAM:

Appellants were convicted in 1970 of several counts arising from the robbery of a mail truck. One of the principal prosecution witnesses at trial was Rice, a postal employee who had been aboard the truck as an armed guard at the time of the robbery. During the trial, defense counsel attempted to cross examine Rice and another witness regarding Rice’s possible complicity in the robbery. The trial court ruled that such cross-examination would not be permitted unless defense counsel proffered evidence proving that Ride was involved in the robbery. On appeal, this court held that the ruling was erroneous, citing Alford v. United States, 282 U.S. 687, 691 — 92, 51 S.Ct. 218, 75 L.Ed. 624 (1931) and United States v. Pugh, 141 U.S.App.D.C. 68, 436 F.2d 222 (1970). The case was remanded to the District Court with the following instructions:

[TJhese cases are remanded to the District Court so that the witnesses Rice and Jones may be recalled for further cross-examination, and further direct examination if indicated, as to credibility and as to Rice’s alleged complicity in the crime. In this connection, the District Court will order that all evidence in the Government’s possession, documentary and otherwise, indicating that Rice was a confederate of the defendants be made available to appellants. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This would include, of course, all of the statements and testimony of the witnesses Rice and Jones previously withheld. After a full hearing, “[i]f the [trial] court determines that the additional evidence so received produces relevant testimony which is material to the credibility [or the complicity] of the witness [Rice] it shall grant a new trial.” United States v. Fowler, [151 U.S.App.D.C. 79, 465 F.2d 664 (1972) ].

Pursuant to these instructions a hearing was held in the District Court. The Court heard testimony from several witnesses and received several documentary exhibits in evidence. After the hearing, the District Court issued findings of fact and conclusions of law which it summarized as follows:

In summary, the Court finds that there is simply no evidence by which a jury could conclude that Rice was a conspirator in the robbery. It is not a question of determining whether the evidence on complicity was strictly “relevant” or “material”; there simply is no evidence of complicity. Even giving the jury the benefit of weighing the evidence and drawing inferences from it, and of weighing the demeanor of the witnesses, there is simply nothing here on the issue of complicity which could have altered the verdict in this case.

The court then denied defendants’ motion for a new trial. This appeal followed.

In United States v. Fowler, 151 U.S.App.D.C. 79, 465 F.2d 664 (1972) we considered the problem of exploratory cross-examination and concluded that reasonable latitude should be afforded to defense counsel:

In a criminal case where prior discovery is necessarily limited, defense counsel often cannot know in advance of trial what facts may be brought out on cross examination. For that reason, his cross examination is necessarily to some extent exploratory, and he should be allowed a reasonable latitude even if he cannot state to the court what precise facts his cross examination will develop. A reasonable amount of exploratory questioning should be allowed, based on slight suspicion, especially when the Government’s principal witness is involved.

465 F.2d at 666. While the Fowler decision sustains the right of a defendant to put exploratory questions to a Government witness based upon nothing more than “slight suspicion,” it does not confer the right to conduct such probes in the presence of the jury. As we stated in Fowler, the exploratory cross-examination may be pursued either “(1) by nonaccusatory questions [in the presence of the jury] or (2) by questioning outside the presence of the jury.” Id. at 668. The latter course permits a less inhibited inquiry in the nature of a voir dire examination. This, in effect, was done in this case at the remand hearing. The only question remaining is whether sufficient evidence was produced at the remand hearing to require a new trial. We think not.

After reviewing the record of the proceedings subsequent to remand, we are convinced that the purported evidence of Mr. Rice’s involvement in the robbery is so tenuous and speculative as to invite summary rejection. The evidence, had it been proffered at trial, could not have served as a predicate for additional cross-examination of Mr. Rice on the issue of his complicity in the robbery. The trial court properly denied appellants’ request for a new trial and we adopt its opinion with respect to the issues decided therein.

Our decision regarding the need for a new trial is also dispositive of appellants’ various claims under the Brady doctrine and the Jencks Act. All documents sought by appellants were produced at the remand hearing. The trial court ruled that they did not provide sufficient evidence of Mr. Rice’s involvement to permit additional cross-examination on that subject at a new trial. The appellants do not contend that the new evidence would be useful for any other purpose or that it has led to the discovery of additional evidence warranting a new trial. Even assuming that these exhibits should have been produced by the Government at trial, therefore, failure to produce them was harmless beyond a reasonable doubt.

Appellant Johnson objects to the admission in evidence at trial of certain weapons and ammunition found in his apartment at the time of his arrest. The evidence included a .38 caliber pistol, a carbine and a quantity of ammunition. A Government witness testified that the pistol belonged to Johnson and was carried by him during the robbery. Tr. at 1029. Admission of the pistol was unquestionably proper. As to the rifle and ammunition, however, there is some question. The only apparent connection between these items and the crime charged is that they may have been purchased with the proceeds of the robbery. Tr. at 679. Without reaching the question of whether admission of this matter was error, it is clear that any error was harmless beyond a reasonable doubt. There is no danger that the evidence was inflammatory because other real and testimonial evidence that the robbers were armed was properly presented to the jury. Moreover, independent evidence of •appellant Johnson’s guilt — including the eye-witness testimony of another participant in the robbery — was overwhelming.

Appellants also contend that the District Court erred in entering judgments, following-guilty verdicts, that imposed sentences running concurrently for both mail robbery, in violation of 18 U.S.C. § 2114, (count one) and robbery while armed, in violation of 22 D.C.Code §§ 2901 and 3202 (count two).

Each appellant was sentenced to three to ten years for mail robbery, ten years being the maximum under the federal statute in view of the fact that the verdict acquitted them of the charge in count one that appellants put the life of the custodian of the mail in jeopardy by the use of a dangerous weapon. Each appellant was given a longer term for robbery while armed, in violation of the D.C.Code.

A question arises notwithstanding the concurrency of the sentences in view of the possibility of adverse collateral effects of a conviction for two felonies. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Canty, 152 U.S.App.D.C. 103, 115, 469 F.2d 114, 126 (1972).

The Government relies in this case on the doctrine of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), that in considering whether the same act or transaction violates two distinct statutory provisions, “the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of an additional fact which the other does not.” The Government stresses that violation of the D.C. armed robbery statutes requires proof that the defendant was armed, which is not required to show violation of the mail robbery statute, and that violation of the federal law requires proof that the person robbed was the custodian of mail, and that this is not required to show a violation of the District Code.

Cases on the issue of multiple sentences tend to focus on legislative intent, wherein the court seeks to determine whether the legislature intends one criminal act to be prosecutable under two different statutory provisions. The leading cases are Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), for the principle of lenity, and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for the principle of separate factual elements, but there are many cases in this field.

However, the field is not without constitutional aspects. The Government asserts as being beyond question that had this robbery happened in any of the 50 states, appellants could of course have been tried by the state for robbery under a state statute and by the United States under the federal mail robbery statute. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). This court is of the view that even this long settled doctrine is of dubious vitality in view of Benton v. Maryland, supra. There is a serious question whether the doctrinal line from Fox to Bartkus has not been eroded by Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

This point need not be pursued, however, in view of the clear Supreme Court pronouncement that where the same sovereignty is involved the double jeopardy principle bars multiple prosecutions for the same offense by different elements of that sovereignty. The principle was applied in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) to prohibit multiple prosecutions by states and municipalities, a ruling that overturned the constitutional doctrine of some 21 states. Waller’s act in removing a canvas mural of a municipality affixed to a wall of a city hall led to his conviction and 180 day sentence for violation of an ordinance prohibiting destruction of city property. This was held to prohibit his later charge by the state on a charge of grand larceny that was based on the same acts. The Court expressly approved the holding of Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907) that “a prosecution in a court of the United States is a bar to a subsequent prosecution in a territorial court, since both are arms of the same sovereign.” We have no doubt that the same principle applies so as to bar multiple prosecutions by the District of Columbia and the United States.

The question before us is not one of successive prosecutions but of a combined prosecution, due to the unique statutory provisions that permit the United States Attorney for the District of Columbia to combine in one indictment, triable in the United States District Court for the District of Columbia, violations of both the United States Code and the District of Columbia Code. This obviously does not involve the high purpose of the Double Jeopardy Clause to safeguard against “repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . .” Indeed, the opportunity of the prosecution under modern procedure to consolidate in a single trial all issues arising out of a single transaction, undercuts any claims of need to have recourse to multiple prosecutions in contravention of the policy of the Double Jeopardy Clause. This court has commented on the advisability of combining all possible charges into one prosecution so as to avoid double jeopardy problems and conserve judicial energies.

But if the problem is less, it is not insignificant when persons in the District of Columbia are branded for both federal and District of Columbia Code felonies for what is essentially a single transaction. The problem is accentuated, and with constitutional considerations, if persons in every state of the Union committing the same act are not put under a multiple federal-state brand- — whether because of constitutional barriers (see supra, note 14), or because of the realistic consideration, identified as long ago as Fox, that except in unusual or emergency cases there is no sound warrant for multiple federal and state convictions even assuming constitutional authority.

Treating the question as one of legislative intent, we go beyond the more familiar problem of discerning the intent of overlapping provisions of federal statutes toward reconstructing a legislative intention of overlapping federal and District statutes. This kind of question engaged the court’s attention in United States v. Spears, 145 U.S.App.D.C. 284, 449 F.2d 946 (1971), and United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). In Spears the court remanded for resentencing because it discerned a legislative intent that required vacating a conviction on a count charging assault of a mail custodian with intent to rob, in violation- of 18 U.S.C. § 2114, when this had been combined for trial on a count charging robbery while armed, in violation of 22 D.C.Code §§ 2901 and 3202.

The Government argues that Spears rests on a special gloss of doctrine applicable when only an attempt at mail robbery is charged. But in Canty the defendants were convicted of a robbery of a federally insured bank, not of attempt. The court held that the robbery of four tellers would not sustain multiple convictions even though there were concurrent sentences, applying the rule that unless the intent of Congress is stated “clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” And more pertinently the court held invalid the imposition of a sentence for assault with a dangerous weapon, D.C.Code § 502, on top of the sentence for federal bank robbery, even though different elements of proof were involved — the federal law not requiring proof that the offender was armed, and the District provision not requiring proof that a bank was involved. The court stated that the Blockburger test was used “traditionally” as a starting point, but added that even though the D.C. Code and U.S.Code provisions “require different elements of proof, there must still be a determination that Congress intended the provisions to bear separate punishments when applied to a single act or transaction.” 152 U.S.App.D.C. at 116, 469 F.2d at 127. In Canty the court analyzed the structure of the federal bank robbery statute, and found that it “subdivides the offense into a series of steps — a continuum running from entry with intent to rob, to robbery by force and violence, to robbery with the aid of a dangerous weapon . . . .” The penalties were increased as the offense became aggravated. The court said that the prosecution had impermissibly charged on the lowest tier of robbery in the federal scheme, and then reached out of the federal scheme for the aggravated portion of the offense to the catch-all assault provision of the District Code. This was held to constitute an impermissible circumvention of the statute where “Congress explicitly imposed a ceiling of one conviction and twenty-five years in prison.”

While Canty can be distinguished from the case at bar, its analysis is pertinent. In the case of the mail robbery statute, 18 U.S.C. § 2114, the scheme is not as comprehensive as that of the federal bank robbery statute. But the statute has a long and somewhat intricate history, as appears from Spears. In its wisdom Congress has provided these gradations: For robbery (of mail matter), or assault of the mail custodian with intent to rob, prison for not more than 10 years (for the first offense). For a second offense, or if the offender “wounds the person having custody of such mail, money ... or puts his life in jeopardy by the use of a dangerous weapon,” 25 years imprisonment.

Congress has thus deliberately addressed itself to the distinction between simple mail robbery and the case where a dangerous weapon is involved, and has provided an increase of punishment only if the use of the dangerous weapon puts the life of the mail custodian in jeopardy. We think the principles of Canty are applicable. It is no ground of distinction that the prosecutor in the case at bar did not initiate the charge on the lowest tier of the mail robbery statute. When the jury acquitted of the charge of putting the life of the mail custodian in jeopardy, all that was left was the included charge of, and conviction on, the first tier of the mail robbery statute.

The “traditional” rule of construction of Blockburger is offset somewhat by the rule that in the absence of plain legislative intention “doubt will be resolved against turning a sirfgle transaction into multiple offenses.” If anything, the mail robbery statute contemplates a single conviction, not multiple convictions, when the first tier of mail robbery is aggravated by the use of a deadly weapon.

This conclusion does not mean that the deadly weapon aspect of the offense must be wholly ignored. As Canty points out, the discernment of legislative intention that there be a single conviction for the mail or bank robbery, and assaults comprised therein, does not preclude the conviction for carrying a dangerous weapon, in violation of 22 D.C.Code § 2304, an offense that was complete without regard to any later use of the weapon in the robbery.

The appellants argue that the armed robbery conviction must be vacated, rather than the mail robbery count which carries a lower penalty. We are persuaded by the government’s view that the reconstruction of legislative intent would accommodate itself to the view that when Congress amended 22 D.C.Code § 2901 in 1967, providing a higher penalty for robberies in the District than has been provided since 1948 for federal mail robbery, it intended to provide the sentencing judge with discretion in determining the penalty. What is impermissible is not the joinder of offense for trial (as appears from Fuller, cited supra, note 18), but the joinder of judgments even with concurrent sentences. To maintain the sentencing discretion of the trial judge, without any possibility of confusion due to the multiple counts and verdicts, the case will be remanded to the trial court, with instructions to vacate the judgment on either count one or count two, and to re-sentence on the other count, as it may deem, after hearing from counsel, in the interest of justice.

So ordered.

      . Tr. at 559-66, 1081-93, 1749-59. This course of questioning was directed not only to Mr. Rice’s credibility but to the validity of the charge that appellants committed robbery from the person of Rice. Tr. at 221.

      . Tr. at 560, 1085, 1090, 1750.

      . Memorandum at 3, D.C.Cir. Nos. 24,772, 24,773, 24,889, filed July 14, 1972.

      . Findings of Fact and Conclusions of Law at 7, D.D.C. Cr. No. 525-70, filed January 23, 1973.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . 18 U.S.C. § 3500 (1970).

      . These included: (1) A previously undisclosed statement by Rice to investigators that he had once been at (but not inside) the African Hut — a nightclub where the robbery was allegedly planned; (2) Grand Jury testimony by one Robert Rippey that an “insider” was involved in the robbery; (3) a report of a polygraph test (one of three given) showing deception by Rice. regarding his involvement (contradicted by the results of two other tests); (4) a postal inspector’s memorandum of an oral report from a F.B.I. agent relaying an informant’s statement to police in Hyattsville, Maryland, that Rice was involved in the robbery.

      . Testimony of Calvin S. Jones, Tr. at 1011 et seq.

      . 18 U.S.C. § 2114 (1970).
      § 2114. Mail, money or other property of United States.
      Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.

      . The count charging postal robbery (count one of the indictment) reads:
      On or about December 23, 1969, within the District of Columbia, the defendants Arthur B. Knight, Haywood T. Kirkland, Robert L. Johnson, Calvin S. Jones and John H. Bowman, by force and violence and against resistance and by putting in fear, stole and took from the person and from the immediate actual possession of David W. Rice, mail matter and money which was the property of the United States, in the lawful charge, control and custody of David W. Rice, consisting of about $382,000 in money and in effecting such robbery, the defendants Arthur B. Knight, Haywood T. Kirkland, Robert L. Johnson, Calvin S. Jones and John H. Bowman put the life of David W. Rice in jeopardy by the use of dangerous weapons, that is, a pistol and a’ sawed-off shotgun.

      . The count charging armed robbery under the District of Columbia statute (count two of the indictment) reads:
      On or about December 23, 1969, within the District of Columbia, the defendants Arthur B. Knight, Haywood T. Kirkland, Robert L. Johnson, Calvin S. Jones and John H. Bowman, while armed with dangerous weapons, that is a pistol and a sawed-off shotgun, by force and violence and against resistance and by putting in fear, stole and took from the person and from the immediate actual possession of David W. Rice, property of the United States, in the care, custody and control of David W. Rice, consisting of about $382,000 in money. This is the same money which is mentioned in the First Count of this indictment.
      Title 22 of the District of Columbia Code provides:
      § 22-2901. Robbery.
      Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than two years nor more than fifteen years. (Mar. 3, 1901, 31 Stat. 1322, ch. 854, § 810; Dec. 27, 1967, Pub.L. 90-226, § 603, title VI, 8'l Stat. 737.)
      § 22-3202. Committing crime when armed — Added punishment.
      (a) Any person who commits a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machinegun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles)-—
      (1) may, if he is convicted for the first time of having so committed a crime of violence in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to life imprisonment; and
      (2) shall, if he is convicted more than once of having so committed a crime of violence in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a minimum period of imprisonment of not less than five years and a maximum period of imprisonment which may not be less than three times the minimum sentence imposed and which may be up to life imprisonment.
      (b) Where the maximum sentence imposed under this section is life imprisonment, the minimum sentence imposed under subsection (a) may not exceed fifteen years’ imprisonment.
      (c) Any person sentenced under subsection (a)(2) of this section may be released on parole in accordance with chapter 2 of title 24, at any time after having served the minimum sentence imposed under that subsection.
      (d) (1) Chapter 402 of title 18 of the United States Code (Federal Youth Corrections Act) shall not apply with respect to any person sentenced under paragraph (2) of subsection (a).
      (2) The execution or imposition of any term of imprisonment imposed under paragraph (2) of subsection (a) may not be suspended and probation may not be granted.
      (e) Nothing contained in this section shall be construed as reducing any sentence otherwise imposed or authorized to be imposed.
      (f) No conviction with respect to which a person has been pardoned on the ground of innocence shall be taken into account in applying this section. (July 8, 1932, 47 Stat. 650, ch. 465, § 2; Dec. 27, 1967, Pub.L. 90-226, § 605, title VI, 81 Stat. 737; July 29, 1970, Pub.L. 91-358, § 205, title II, 84 Stat. 600.)

      . Knight: 4 to 12 years; Kirkland and Johnson: 10 to 30 years.

      . The Supreme Court’s ruling in Bartkus and earlier cases, e. g., Jerome v. United States, 318 U.S. 101, 105, 63 S.Ct. 483, 87 L.Ed. 640 (1943), and indeed expressions giving back to Fox v. Ohio, 5 How. 410, 434, 46 U.S. 410, 12 L.Ed. 213 (1847), say the same act can be prosecuted by both the federal and state governments. The rationale, as presented in Fox and Bartkus, is the then existing doctrine that the Double Jeopardy Clause is inapplicable to the states. That proposition was repudiated by Benton v. Maryland, supra.

      . In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) the Court had held the Fifth Amendment privilege against self-incrimination is fully applicable to the states. Murphy accompanied this with a ruling that one jurisdiction in our federal system may not compel a witness to give testimony which might incriminate him under the laws of another jurisdiction.
      In Murphy the Court expressly overruled its decision in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408 (1944). Yet Feldman had been put in essence as a corollary of the proposition that the state and federal government are separate and independent sovereignties, and the Feldman opinion relied on the doctrine of Fox v. Ohio, supra, that there could be successive prosecutions for the same offense as violations of state law and of federal law.
      It is appreciated that the separate sovereignties doctrine of Fox was referred to and was not repudiated in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). But it was limited in such a way as to override the doctrine of some 21' states treating municipalities and states as separate sovereigns for double jeopardy purposes. If there were successive prosecutions for what the Court considered to be the same conduct and offense, the Fox doctrine would have to be reconsidered.

      . Holding of Grafton as stated in Waller, see 397 U.S. at 393, 90 S.Ct. at 1188.

      . See 11 D.C.Code § 502 (1973).

      . Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

      . Fuller v. United States, 132 U.S.App.D.C. 264, 289-90, 407 F.2d 1199, 1224-25 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

      . See, e. g., Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).

      . 152 U.S.App.D.C. at 115-16, 469 F.2d at 126-27, quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955).

      . As in United States v. Maude, 156 U.S. App.D.C. 378, 481 F.2d 1062 (1973), where, however, the court stated that the forgery of the stamp, and the possession of a forged stamp with intent to use it deceptively, were charged and shown in proof to be “separate enterprises comprising separate historical events,” 481 F.2d at 1078.

      . 152 U.S.App.D.C. at 116, 469 F.2d at 127.

      . Id. at 117, 469 F.2d at 128.

      . See id. at 118, 469 F.2d at 129: “The prohibition on carrying a dangerous weapon is designed to serve interests that the federal bank robbery scheme does not purport to serve.”

      . While the contentions under discussion in this opinion were advanced by appellants Knight and Johnson, in the interest of justice we extend the scope of our judgment to appellant Kirkland.
      Another question may arise by virtue of the fact that the convictions of appellants Kirkland and Johnson on count 7 for the assault with a dangerous weapon of Arnold, the driver of the mail truck, were affirmed by this court’s order of July 14, 1972. There were no allegations of error as to this court on the ground of impermissible joinder of judgment or need for resentencing. In the interest of finality, our judgment today will permit but not require the district court to reconsider the judgment on count 7, if deemed appropriate in the interest of justice.


source: Caselaw Access Project

author: BAZELON, Chief Judge:

license: Public Domain

text:
    Anthony R. MARTIN-TRIGONA, Petitioner, v. FEDERAL RESERVE BOARD, Respondent, Bank America Corporation, Intervenor.
    No. 73-1941.
    United States Court of Appeals, District of Columbia Circuit.
    Dec. 6, 1974.
    Rehearing Denied Feb. 24, 1975.
    As Modified Jan. 14, 1975.

      Anthony R. Martin-Trigona pro se.
    Carla A. Hills, Asst. Atty. Gen., Robert E. Kopp, and Michael Kimmel, Attys., Dept, of Justice, were on the brief for respondent.
    Timothy B. Dyk and Noel Anketell Kramer, Washington, D. C., were on the brief for intervenor, Bankamerica Corp.
    BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and JUSTICE, District Judge for the Eastern District of Texas.

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

   BAZELON, Chief Judge:

Bankamerica Corporation, a bank holding company subject to the Bank Holding Company Act of 1956, 12 U.S.C. § 1841 et seq. (1970), intends to merge with GAC Corporation, a non-banking company. Mergers between bank, holding companies and non-banking companies are generally forbidden by § 4 of the Bank Holding Company Act, 12 U.S.C. § 1843 (1970), but § 4(c)(8) permits the Federal Reserve Board to determine whether certain non-banking activities are sufficiently related to banking activities such that the purposes of § 4 would not be fulfilled by prohibiting mergers of companies engaged in such activities with bank holding companies. The class of activities performed by GAC Corporation have been determined to be sufficiently related to banking to permit, in most circumstances, a merger between companies performing such activities and a bank holding company. However, each proposed merger between a non-banking company and a bank holding company is to be considered on its individual merits. On consideration of Bankameriea’s request for approval of its proposed merger with GAC, the Reserve Board first held that the merger was not consistent with the Act and then on reconsideration held that it was and approved it. The Reserve Board had before it the adverse comments of the Antitrust Division of the Department of Justice.

Pursuant to the Bank Holding Company Act, the Reserve Board gave public notice of the proposed merger and requested comments from interested parties both on the merits of the merger under the Act and on the need for a trial-type hearing to consider those merits. Petitioner Martin-Trigona responded to this notice, stating generally that the merger was bad for the country and that a full adversary hearing was required. The Reserve Board requested petitioner to state what particular interest he had in the transaction and to describe what kinds of evidence he would adduce at any hearing into the merits of the merger. The petitioner refused to comply with this request. Therefore, the Board determined that petitioner had no standing to intervene in the administrative proceedings. The Board apparently did not consider petitioner’s request for a hearing. Petitioner seeks review in this Court of the Reserve Board’s refusal to permit intervention in the administrative hearing and from the “denial” of his request for a hearing. We treat this as a petition to set aside the Board’s prior order permitting the merger on the grounds that the Board both impermissibly denied intervention and denied a full hearing on the merits of the merger.

The Reserve Board argues against the petition that Martin-Trigona has no standing since he has not alleged any particularized injury to himself or his property flowing from the merger. The Board’s standing argument applies both to petitioner’s standing before this Court and to his standing before the Board’s own proceedings. We first note the salient principles of standing as recently explicated by the Supreme Court. First, the plaintiff must allege that the “challenged action has caused him injury in fact, economic or otherwise. . . . ” Second, this alleged injury in fact must be “arguably within the zone of interests . . . protected or regulated by the statute . in question.” Furthermore, the party seeking review may not merely allege the existence of an injury, but must allege “facts showing that he is himself adversely affected” by the challenged action. For purposes of this decision, we hold that these tests apply both to standing before this Court and standing before an administrative agency.

Clearly competitors of either the bank holding company or the non-banking company would be within the zone of interest of § 4 of the Bank Holding Company Act, if they allege injury to their business resulting from a proposed § 4 merger. If this is so, we would have no difficulty holding that a potential competitor would also be within the zone of interest of § 4, if that potential competitor may realistically be viewed as a possible entrant. The more difficult question concerns whether consumers of the banking services of the parties to the proposed merger or of the type of banking services provided by those parties would be within the zone of interest of § 4. This question poses in turn the question whether the Federal Reserve Board is required under § 4 to consider the anti-competitive effects of a merger between a bank holding company and a non-banking company. If the Board is so required, then consumers would have standing to challenge a Board action under § 4 both before the Board and in the courts to the extent the consumers would otherwise have standing under the anti-trust laws.

It is not clear whether the Board should consider the anti-competitive effect of § 4 mergers. The Board is expressly obligated under § 3 of the Bank Holding Company Act and under the parallel Bank Mergers Act to review the anti-competitive effects of mergers of member banks and of bank holding companies. But this obligation does not directly apply to § 4 mergers. We are not informed at this time what reasons if any should prevent the Reserve Board from applying the statutory scheme under § 3 and the Bank Mergers Act to § 4 mergers. We do note that the legislative history seems to indicate that anti-competitive considerations undergird § 4 as well as § 3 and that antitrust policy is of such national importance that regulatory agencies should apply that policy sua sponte in order to discharge their duty to represent the public interest, Furthermore, the Board is given express authority under 12 U.S.C. § 1843(c)(8) to apply anti-trust considerations to § 4 mergers. This is, to be sure, an authority not fully parallel to the authority granted by the Bank Holding Company Act and the Bank Mergers Act, both of which assume administrative application of the standards of § 7 of the Clayton Act. However, the authority of § 1843(c)(8) may be sufficient to authorize consumer standing before the Board. Under the view we take of this case, it is unnecessary to resolve this issue and we would be hesitant to do so in any event without the benefit of the Reserve Board’s views. We have, however, felt it necessary to fully address the issues in this case since the petitioner is proceeding pro se.

Assuming for purposes of decision that petitioner, as a potential competitor or as a consumer of credit services, might represent an interest within the zone of interests protected by § 4, it is abundantly clear that petitioner has not particularly alleged an injury in fact within this zone. As stated earlier, this he must do before he may assert standing. The only allegations of injury in fact are some conclusory statements in petitioner’s brief in this Court which are clearly not sufficient to obtain standing before the Board and are not, we hold, sufficient to obtain standing in this Court. It follows that petitioner MartinTrigona has no standing at present to seek review of the Board’s order and no standing to request participation as a party in the Board’s proceedings in this case. His petition for review is therefore dismissed.

So ordered.

      . 12 C.F.R. § 225.4(a)(1) (1974).

      . Id. § 225.4(b).

      . See Bankamerica Corp., 38 Fed.Reg. 22578 (FRB 1973); id., 38 Fed.Reg. 21317 (FRB 1973).

      . 12 U.S.C. § 1843 (1970) implemented in 12 C.F.R. § 225.4(b)(2) (1974).

      . See Letter of June 26, 1973, reprinted in the Record at 886-67 which denies petitioner’s request for a hearing because of his failure to show injury in fact, his failure to specify what he would show at a hearing and his failure to demonstrate why his showing could not be made in written form.

      . 12 U.S.C. § 1848 (1970).

      . Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970).

      . Id. at 153, 90 S.Ct. at 830, 25 L.Ed.2d 184.

      . Sierra Club v. Morton, 405 U.S. 727, 736-740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972) . See also United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) .

      . See Office of Communications of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994, 1000 n. 8 (1966); National-Welfare Rights Org. v. Finch, 139 U.S.App. D.C. 46, 429 F.2d 725, 732 & n. 27 (1970). See also L. Jaffe, Judicial Control of Administrative Action 524 — 25 (1965). We have no occasion in this case to determine whether the different policies applicable to standing before this Court and before an administrative agency might in a different context require different concepts of standing. See Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv.L.Rev. 721, 764-67 (1968).

      . See 12 U.S.C. § 1850 (1970); Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); National Ass’n of Securities Dealers, Inc. v. SEC, 136 U.S.App.D.C. 241, 420 F.2d 83, 97-100 (1969), rev’d on other grounds, 401 U.S. 619, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (Bazelon, C. J. concurring). See also Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970). Of course, if it is subsequently determined that the Reserve Board must take into account antitrust considerations, then competitor standing would be appropriate on the basis of that interest as well.

      . See Marine Space Enclosures, Inc. v. Federal Maritime Comm’n, 137 U.S.App.D.C. 9, 420 F.2d 577, 590-591 (1969). Cf. Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1310 (5th Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); Martin v. Phillips Petroleum Co., 365 F.2d 629, 633 (5th Cir.), cert. denied, 385 U.S. 991, 87 S.Ct. 600, 17 L.Ed.2d 451 (1966); Waldron v. British Petroleum Co., 231 F.Supp. 72, 81-82 (S.D.N.Y. 1964). See also Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964) and the various “potential competition” cases cited and discussed in United States v. Falstaff Brewing Corp., 410 U.S. 526, 558-562, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973) (Marshall J. concurring in the result). It is settled that anti-competitive practices forbidden by § 7 of the Clayton Act may give rise to a private damage action under § 4 of the Clayton Act. See Gottesman v. General Motors Corp., 414 F.2d 956 (2d Cir. 1969). Thus any person who could bring such a private damage action would have standing before an administrative agency to object to such anti-competitive practices.

      . See State of West Va. v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir. 1971), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1972); cf. the reasoning of Hanover Shoe Co. v. United Shoe Mach. Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). See generally In re Multi-District Air Pollution, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973); Bergstrom, The Private Litigant’s Standing to Sue, 7 Antitrust Bull. 3 (1962); Comment, Standing to Sue for Treble Damages under Section 4 of the Clayton Act, 64 Colum.L.Rev. 570 (1964). For further authority, see Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 261-266, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). If § 4 of the Bank Holding Company Act requires the Reserve Board to consider anti-competitive effects, then certainly those who suffer injury from those anticompetitive effects would be within the zone of interest of § 4.

      . 12 U.S.C. §§ 1842, 1849(b) (1970).

      . 12 U.S.C. § 1828(c) (1970).

      . See 1_2 U.S.C. § 1849 (1970).

      . See S.Rep.No. 1095, 84th Cong., 1st Sess., 1956 U.S.Code, Cong. & Admin.News 2482, 2483, 2486, 2495. We, of course, note that immunity from anti-trust policy is not lightly inferred. See 12 U.S.C. § 1849(a) (1970); United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). See also cases cited and discussed United States v. Phillipsburg Nat’l Bank & Trust Co., 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970).

      . Marine Space Enclosures, Inc. v. Federal Maritime Comm’n, 137 U.S.App.D.C. 9, 420 F.2d 577, 585 (1969). See City of Lafayette v. SEC, 147 U.S.App.D.C. 98, 454 F.2d 941, 948 (1971), aff’d sub nom. Gulf States Utilities Co. v. FPC, 411 U.S. 747, 758-762, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973).

      . See note 9 supra.

      . Brief for Anthony R. Martin-Trigona, at 15-16.

      . This dismissal of Martin-Trigona’s petition for review is without prejudice to his seeking reconsideration of the Reserve Board’s order denying intervention and a hearing. See 12 C.F.R. § 262.3(g)(5) (1974). In such a petition for reconsideration Martin-Trigona could present facts indicating his stake in the merger and facts that should require a hearing. Appeal from an order denying reconsideration would seemingly be proper under 12 U.S.C. § 1850 (1970).


author: MacKINNON, Circuit Judge: MacKINNON, Circuit Judge:

text:
    UNITED STATES of America v. Herman L. WOMACK, Appellant. UNITED STATES of America v. POTOMAC NEWS COMPANY, Appellant.
    Nos. 71-1711, 71-1894.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 21, 1972.
    Decided Dec. 7, 1972.

    Supplemental Opinion Dec. 31, 1974.
    Rehearing Denied Jan. 31, 1975.

      Mr. Stanley M. Dietz, Washington, D. C., for appellants.
    Mr. Robert D. Zsalman, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry and Donald E. Campbell, Asst. U. S. Attys., were on the brief, for appellee. Mr. Richard A. Hibey, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee. Mr. Thomas A. Flannery, U. S. Atty., at the time the record was filed, also entered an appearance for appellee in No. 71-1894.
    Before TAMM, Circuit Judge, WADE H. McCREE, Jr., Circuit Judge for the Sixth Circuit, and MacKINNON, Circuit Judge.

       Only (lie evidentiary issues presented bv these cases are disposed of by this opinion.

       Sitting by designation pursuant to Title 28, XJ.S.C. § 291 (a).

   MacKINNON, Circuit Judge:

Appellants Womack and Potomac News, Co., Inc. were indicted on twenty counts of interstate transportation of obscene matter in violation of 18 U.S.C. § 1462 and three counts of mailing nonmailable matter and information stating how and where obscene materials were to be obtained, in violation of 18 U.S.C. § 1461. A jury trial resulted in a verdict of guilty on twelve counts under § 1462 and on all three counts under § 1461. On this appeal three issues are raised: (1) the propriety of the exclusion by the trial court of a number of allegedly comparable magazines; (2) whether the eight magazines which formed the basis of appellants’ convictions were obscene and not within the free speech guarantees of the First Amendment and (3) the validity of the search warrant under which the eight magazines were seized. In this opinion we consider only issues (1) and (3) and defer any opinion on (2) pending the decisions of the Supreme Court in Alexander v. Virginia, 212 Va. 554, 186 S.E.2d 43, cert. granted, 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 332 (1972) and companion eases, involving similar issues which were argued on October 16, 1972.

I. Comparison Evidence

Appellants were convicted on the basis of eight explicit “magazines” apparently directed at an audience of homosexuals and pedophiles. The particular evidentiary issue on appeal involves appellants’ attempts to introduce allegedly comparable materials into evidence for various purposes. Appellants contend they were denied due process of law in the District Court’s refusal to admit any of the proffered exhibits. There has been a considerable amount of confusion in the courts as to the admissibility and function of comparison evidence in obscenity cases. Some jurisdictions have held it reversible error to reject such evidence, while others exclude it rather summarily. Some of this confusion, it seems, stems from an inability to distinguish the various purposes for which comparison evidence is sought to be introduced. In this case appellants urge three distinct purposes which we will consider separately.

A. Nonobscenity as a Matter of Law

Appellants contend that they should be allowed as a requirement of due process to present the proffered comparison exhibits to the jury as primary autoptical evidence in order that the jury may compare materials previously held nonobscene by other courts (including the United States Supreme Court) to the exhibits which are the subject of the instant prosecution. This is clearly incorrect and involves a basic misconception of the respective roles of judge and jury. In essence it demands that the jury perform the judge’s task of determining whether this issue should be disposed of as a matter of law. That is, it requires the jury to interpret the effect of a previous holding of nonobscenity as it bears on the issues of the present ease. Can it possibly be said that the jury is competent to interpret the stare decisis effect of various decisions, analyze the grounds of their holdings and distinguish them on their facts ? This is clearly beyond the province of the jury and is a basic function of the judge. When presented with a motion for a judgment of acquittal under Fed.R.Crim.P. 29, the judge properly should compare the evidence in the instant case with that held nonobscene by the controlling authority of that jurisdiction. If the matter held nonobscene by such courts, in his opinion, equals or exceeds the evidence at issue, a judgment of acquittal should certainly be entered.

A number of cases which uphold the refusal to admit comparison evidence have nevertheless approved its use in this manner by the judge. This was noted in this court’s decision in Huffman v. United States, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971), petition for rehearing granted on other grounds Aug. 10, 1972:

We do not say that decisions involving other publications can play no part in the evaluation of a particular magazine or book. Certainly a judge passing on the legal “obscenity" of material before him ivill consider whether it is so close to others already passed on by the courts as to require a judicial ruling on obscenity without submission to the jury.

152 U.S.App.D.C. at 255-256, 470 F.2d at 403-404 (emphasis added). Similarly, in United States v. 392 Copies of Magazine “Exclusive,” 253 F.Supp. 485 (D.Md.1966), aff’d 373 F.2d 633 (4th Cir. 1967), the court expressly left open the question of comparison evidence in a jury trial but concluded that such material from prior “adjudicated cases, whether held obscene or not obscene, should always be considered by the Court as illuminating the opinions rendered in those cases, and the items offered have been so considered.” 253 F. Supp. at 495. The use of comparative material to determine obscenity as a matter of law also is appropriate at the appellate level.

Therefore the trial court clearly was correct in retaining this comparative legal method solely as his function and refusing to lay it before the jury. Furthermore, on review of the relevant exhibits we hold that the proffered evidence held nonobscene by the Supreme Court is not sufficiently similar to' the exhibits at issue at trial as to have required a judgment of acquittal to be entered as a matter of law nor to require our reversal on appeal.

B. Proving Contemporary Community Standards

Appellants also sought to introduce comparative evidence to aid the jury in determining the prevailing contemporary community standards. The District Court excluded all of defendants’ proffered exhibits, applying the doctrine enunciated by this court in Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, cert. denied, 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961).

In Womack, a broad range of comparison materials were proffered by the defendant in an effort to show a contemporary community standard of general acceptance of works like his own. The court rejected the comparison evidence as immaterial where the proper foundation had not been shown. Judge Prettyman described the necessary foundation as consisting of two elements: “. . . that the two types of matter are similar. And as another part of his foundation he must show a reasonable degree of community acceptance of works like his own.” 111 U.S.App.D.C. at 10, 294 F.2d at 206. Appellants contend that this should not be the rule in modern obscenity prosecutions since in the Womack case there was such a wide divergence between the proffered exhibits and the materials that were the subject of that prosecution. While it is true that the comparison evidence offered in the instant case is not as vastly different from the materials at issue in the-trial as in Womack, this fact in no way undermines the soundness of the Womack test. The foundational requirements established in that case are eminently logical prerequisites under traditional concepts of materiality and relevancy. Moreover, the Womack test has recently been applied in this circuit in Huffman v. United States and has been explicitly adopted by a number of other circuits as well as in some state jurisdictions.

We are fully cognizant of the notion that expert testimony on contemporary community standards is desirable and may even be a necessary requirement of due process. Most of the impetus behind the use of expert testimony in obscenity cases can be traced to the concurring opinions of Justices Harlan and Frankfurter in Smith v. California, 361 U.S. 147, 160, 169, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Those opinions indicated that due process may require some kind of expert testimony to enlighten the court on the community standards element of the Roth test. Justice Harlan’s opinion alludes specifically to the use of comparison evidence. Many other decisions have echoed this position on the need for objective guidelines to help the court reach a rational decision under the admittedly imprecise Roth formula. Yet it is clear that the Womack test is perfectly compatible with the Smith policy and many cases adopting the Womack rule have excluded comparative evidence while simultaneously recognizing the validity of the Smith rationale. In this case this inherent consistency is exceedingly apparent. There was in fact extensive expert testimony on both sides as to contemporary community standards. That is all that the Harlan and Frankfurter opinions can be read to have required. As the Sixth Circuit has stated in this regard:

[W]e are not unmindful of the relevant observations of Justices Frankfurter and Harlan in their concurring opinions in Smith v. People of State of California, 361 U.S. 147, 164, 165, 172, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). We do not content ourselves by saying that those concurrences did not necessarily express the majority view, but are agreed that what the District Judge did in this case [excluding eomparison evidence under Womack] does not offend the views of those distinguished Justices. We consider that their suggestions of a legitimate range of admissible expert testimony were satisfied by what the experts here were allowed to tell the jury.

United States v. West Coast News Co., 357 F.2d 855, 859 (6th Cir. 1966), rev’d sub nom. on other grounds, Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967). The Smith concurring opinions were in no way intended to eliminate valid, rational rules governing the admissibility of evidence.

Womack merely requires an adequate foundation to be laid for the introduction of comparison evidence. Since the issue at hand is the nature of contemporary community standards with respect to “works like his own,” in order for there to be a rational basis for its admission there must be a showing that the proffered evidence (1) is similar to his own, and (2) enjoys a reasonable degree of community acceptance. The burden is on the defendant and in the absence of such a showing, the evidence must be excluded as lacking sufficient probative value. In this regard the trial judge must be allowed “wide discretion as to whether to permit the introduction of such allegedly comparable publications” since “the admission of a number of different publications alleged to be comparable to the publication in issue might make the trial unmanageably complex and lengthy.” -

We have carefully reviewed the various exhibits involved in this case and hold that the trial judge did not abuse his discretion in excluding all the proffered comparison evidence. Most of the evidence sought to be introduced was simply unsusceptible of a convincing showing of similarity to the defendants’ works. In this connection it is important to realize that “slight” variations in format may well produce vastly different consequences in obscenity determinations. This court, in Huffman, recently surveyed the state of obscenity law and observed with regard to photographs of males that various factors such as indoor activity as opposed to out-door nudism and “duals” as opposed to singles,” result in wholly different legal characterizations. In Huffman, the defendant sought to introduce magazines picturing “singles” for comparison with his works which included “duals.” We held:

These magazines . . . fall within the category of “singles”. As discussed above, this type of magazine is clearly distinguishable from the genre involved here. . . . Once the judge declines to dismiss the prosecution on legal grounds [see part A, supra] we think it becomes a matter of sound discretion, that takes into account relatedness and remoteness, whether it is more likely to be helpful or confusing for the jury to make comparisons with publications passed on in previous cases. In view of the important distinctions between the “duals” photographs in the magazines on trial and the singles in previous cases, we hold the judge did not abuse his discretion in ruling against appellants on this issue. Womack v. United States, 111 U.S.App.D.C. 8, 10, 294 F.2d 204, 206 cert. denied, 365 U.S. 859 [, 81 S.Ct. 826, 5 L.Ed.2d 822] (1961).

Turning to the evidence offered by appellants for comparison purposes in this case, we find that two of the magazines are labeled as marriage manuals and depict heterosexual activity between adults. Another magazine portrays heterosexual acts between adult members of different racial groups. Yet another magazine shows nude and partially nude females in various erotic poses. Appellants also proffered an illustrated version of the Report of the President’s Commission on Obscenity containing pictures which run the gamut of bestiality to normal heterosexual activity. The remaining magazines and ten posters depict adult males in various stages of nudity. Many of them portray scenes from the day-to-day life at nudist colonies, while others portray the physiques of weight lifters. Appellant seeks to draw our special attention to certain particular exhibits alleged to be thé most similar to those at issue here. Yet on examination we find that they too are vastly dissimilar to his publications. Unlike the subject matter of this prosecution, there are no pictures of young boys in “duals” caressing and fondling one another in various positions of simulated sexual activity. Some of the proffered evidence does include young boys in groups but only photographed out-of-doors and containing no suggestion of sexual activity. Under these circumstances we hold the trial judge was well within his wide discretion in excluding these exhibits on grounds of insufficient similarity.

Appellant also had sought to introduce eight magazines published by one of their “competitors” (Tr. 673) which clearly meet the test of similarity. With respect to these eight exhibits the Government contends, however, that appellants failed to meet their burden of showing a reasonable degree of community acceptance as required by the second element of the Womack test. This issue has arisen in a number of obscenity cases in which the defendant has sought to introduce similar material purchased in the community in an effort to show a degree of community tolerance and acceptance for works like his own. Of course, a determination of the precise point at which a publication is so widely sold and is so generally available in the community as to warrant a finding of community acceptance is difficult to fix with assurance. And a few eases have held that in close cases it is error to exclude such comparison materials. However, it is not difficult to identify that which clearly does not even approach an appreciable level of community acceptance and to exclude that material as possessing so little probative value as to serve only to impede the resolution of the issues. A distinction must be made between a showing of “mere availability” and that of “a reasonable degree of community acceptance:”

Evidence of mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in the absence of proof that the material enjoys a reasonable degree of community acceptance. Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, 206 (1961), cert. denied, 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961). Such proof would normally be supplied by expert witnesses. No such proof was offered. In the absence of this foundation, the allegedly similar pornographic material was properly excluded. Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.

United States v. Manarite, 448 F.2d 583, 593 (2nd Cir. 1971). In our case, appellants spoke of the materials as having been easily purchased from certain specific suppliers in New York. Yet such esoteric materials purchased from a few vendors known only to those in the trade with no general circulation are not probative on the issue of contemporary community standards. This was well stated in the “Exclusive” case:

The standards of “the Block” [an area in Baltimore in which there are a number of shops which deal in pornographic materials] are not the standards to be applied in this case, any more than the standards of the most straight-laced persons. Material purchased in such specialized outlets has little or no value in determining contemporary community standards. Ginzburg v. United States, [383 U.S. 463,] 86 S.Ct. [942,] 969 [,16 L.Ed.2d 31] (1966). (Emphasis added.)

The only evidence appellants offered to show community acceptance of these magazines was the fact that as of the date of this trial, no criminal charges had been lodged against their competitors (Tr. 673-75), but mere failure to prosecute does not begin to constitute a sufficient showing on this issue. We hold that with respect to these magazines, appellants have woefully failed to show a reasonable degree of community acceptance. Without such evidence the trial judge can in no way be said to have abused his discretion in excluding the proferred evidence.

C. Cross-Examination of Expert Witnesses

Finally, appellants argue that at the very minimum, comparison evidence should be allowed to be presented to the various expert witnesses on the issue of community acceptance, particularly for cross-examination purposes.

The use of comparative evidence for direct testimonial purposes on the issue of contemporary community standards is clearly governed by the resolution of the issue of its use as primary autoptical evidence. See Part B, supra. That is, once the court has determined under the Womack guidelines that the probative value of the comparison evidence is insufficient to be material on the issue of community standards, it is equally within the judge’s discretion, indeed almost incumbent upon him for reasons of consistency, to exclude the introduction of such evidence through the expert, witnesses.

A more difficult question is whether such materials are to be used for cross-examination purposes. It may indeed be helpful for the jury to know that the expert witness holds an opinion contrary to that of the Supreme Court. Apparently one case in this jurisdiction has allowed such use of comparative evidence. However, this is definitely a matter in which the trial judge is to be afforded wide discretion. As Judge Wyzanski has- said in a First Circuit decision upholding the trial judge’s discretionary exclusion of allegedly comparable material as well as his refusal to allow expert testimony with respect to them :

Nor is a judge required to admit as a touchstone for the jury even those books which are admittedly not obscene. The admission of a number of different publications alleged to be comparable to the publication in issue might make the trial unmanageably complex and lengthy. The trial judge must be allowed wide discretion as to whether to permit the introduction of such allegedly comparable publications, and as to whether to allow the witnesses to be examined in detail on publications other than the one directly at issue. (Emphasis added.)

Not only do the dangers of excessive trial length, complexity and unmanageability weigh heavily in favor of according the trial judge broad discretion, but also the undesirability of allowing the jury to speculate as to the basis for a Supreme Court holding of nonobscenity. That is, in light of the various factors that enter into a legal finding of obscenity and the generally confusing state of this area of law at the time of this trial, it is clearly a matter of broad discretion for the trial judge to balance the dangers of jury confusion against the possible benefits of effectively undermining the credibility of a given witness. In this case the decisions referred to by appellant in which the comparison evidence was held nonobscene were particularly cryptic and to infer a lack of credibility from any inconsistencies between the expert and that decision would be highly speculative and confusing to the jury. Even absent this factor, the judge is always to be allowed broad discretion as to such testimonial matters. We hold here that the judge properly exercised that discretion.

Therefore, with respect to the issue of comparison evidence as a whole, we affirm the rulings of the trial court.

II. Search and Seizure Issue

Appellants raise three objections to the warrant used to seize the various incriminating materials involved in this case. The warrant is claimed to be invalid (1) on its face for overbreadth, (2) for lack of a prior adversary hearing, and (3) as calling for a search for “mere evidence” as distinguished from a search for fruits or implements of crime. We find all three objections to be wholly without merit and decline to reverse the convictions on these grounds.

First, there can be no serious claim that the warrant was impermissibly vague as to the items to be seized. The warrant incorporates by express reference the underlying affidavit attached thereto which quite specifically details the records and documents to be obtained in the search. Under these circumstances, we have held the warrant to meet the necessary specificity requirements. Although during execution of the warrant some other materials were seized, all of them were returned and none were used at appellants’ trial. This clearly does not affect the validity of appellants’ convictions.

Second, the requirement of an adversary hearing prior to the issuance of a warrant is derived from Supreme Court decisions holding that the public’s First Amendment rights would be jeopardized if a judge were allowed to suppress large numbers of copies of an allegedly obscene publication simply on the basis of an ex parte decision on the issue of obscenity. This authority is clearly inapposite here since this search warrant- did not authorize the seizure of any materials protected by the First Amendment but only business records and other correspondence relating to the publication, sale and distribution of the magazines listed in the affidavit and the identity of some of the models.

Lastly, appellants’ “mere evidence” argument and citation of the Gouled case is entirely inappropriate in light of the Supreme Court’s complete disavowal of that doctrine in Warden v. Hayden, 387 U.S. 294, 300-310, 87 S.Ct. 1642, 1646-1651, 18 L.Ed.2d 782 (1967) in holding there was no valid basis for prohibiting “intrusions to secure ‘mere evidence’ ” and permitting “intrusions to secure fruits, instrumentalities, or contraband.”

Had we reached opposite conclusions on either the evidentiary or the search and seizure issues involved in this case, we would have reversed the convictions. However, since we have upheld the trial court on these issues, we release this opinion at this time and order that the case be held in abeyance with respect to the First Amendment issues to await the decision of the Supreme Court in the pending obscenity cases.

Order accordingly.

SUPPLEMENTAL OPINION Filed Dec. 31, 1974

MacKINNON, Circuit Judge:

On December 7, 1972, this court issued an opinion disposing of the evidentiary issues presented by these appeals. That decision deferred action on the following issue:

whether the eight magazines which formed the basis of appellants’ convictions were obscene and not within the free speech guarantees of the First Amendment

pending the decisions in several obscenity cases then before the Supreme Court. Original Op., supra,, at 372. The decisions in those cases have since been issued. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973). We now dispose of the remaining issue.

Miller, supra,, established the following three tests for determining whether a work is obscene:

(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, .
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24, 93 S.Ct. at 2615. Appellants are entitled to the benefit of any constitutional principle stated in Miller. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Only Miller test (b) involves modifications of prior principles which would potentially benefit appellants.

Appellants were convicted for violations of 18 U.S.C. § 1461 (mailing obscene matter) and § 1462 (interstate transportation of obscene matter). In Hamling, supra, the Court held that section 1461 was not unconstitutionally vague in light of the prior construction of that section in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and therefore the statute was sufficient to support a conviction under Miller test (b). In United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7, 93 S.Ct. 2665, 2670, 37 L. Ed.2d 500 (1973), the Court indicated it was prepared to construe the terms of section 1462 “as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard-core’ sexual conduct given as examples in Miller . . . .” The Court reaffirmed this intent in Hamling. Thus both statutes under which appellants were convicted satisfy the requirements of Miller test (b).

In Miller, the Court listed certain “plain examples” of the type of material which a statute could regulate under Miller test (b):

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S.Ct. at 2615. The magazines which formed the basis for appellants’ convictions are described at note 4 of our original opinion. It is readily apparent that these magazines contain material portraying most of the “plain examples” of obscenity which Miller held sufficient to support a conviction. We find beyond a reasonable doubt that this case would have reached exactly the same result had it been tried using (b) of the Miller tests. See United States v. Gower, 164 U.S.App.D.C. 98, 503 F.2d 189 (1974). Nothing approaching the kind of doubt as to the application of Miller to the materials in question which required remand in Huffman v. United States (Pryba v. United States), 163 U.S.App.D.C. 417, 502 F.2d 419 (1974) is present in this case.

Appellants argued that the governmental interest in regulating obscenity is limited to the protection of juveniles and the prohibition of public display and pandering of such materials. The Supreme Court has since rejected the argument that the role of the government is so limited. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-69, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

Appellants’ convictions are accordingly affirmed as to all counts.

Affirmed.

      . 18 U.S.C. § 1462 provides :
      § 1462. Importation or transportation of obscene matters
      Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce — ■
      (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character ;
      * >)! Si! * *
      Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

      . 18 U.S.C. § 1461 provides:
      § 1461. Mailing obscene or crime-inciting matter
      Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—
      Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made
      Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
      Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

      . Appellant Womack was sentenced to serve one to three years’ imprisonment on 12 counts (concurrent with each other) and to serve eighteen months to four and one-half years’ imprisonment on three counts (concurrent with each other but consecutive to the sentence imposed upon the prior counts). The United States District Court for the District of Columbia sentenced the appellant, Potomac News Company, to pay a fine of $2,000 upon each count cumulatively (a total fine of $30,000).

      . The eight magazines are: Boys No. 1, Boys No. 2, Boys No. 3, (Government Exhibits Nos. 25, 26, 27) (5,000 copies of each were printed and single issues retailed for $3.00 each; Tr. 1095) ; Chieken Little No. 2 (Ex. 28, 10,000 printed, $3.00 each) ; Phallic Development in the Pre-Adoleseeni, (Ex. 24, 20.000 printed, $5.00 each) ; Phallic Development in the Adolescent (Ex. 21-1, 20.000 printed, $5.00 each) ; Boys Who Seduce Other Boys, (Ex. 30, 20,000 printed, $3.50 each) ; and My Last Time —Never Again (Ex. 31, 20,000 printed, $3.50 each). Appellants were acquitted on counts 5 and 8, which involved the magazines Auto-Fellatio and Masturha

        tion, (60,000-80,000 sold, $7.50 each) and (7heekmate (Ex. 29, 5,000 printed, $3.00 each). Testimony as to printing volume, sales and the various prices charged at the different levels of distribution appear at Tr. 1095-1100. Additionally, under counts 22 and 23, the jury was allowed to consider only those advertising brochures which dealt with the original ten magazines set out in the indictment, i. e., Government Exhibits 21, 21-B, 22-A and 23-C. All other brochures involving other magazines were excluded by the trial court (Tr. 1287-1288).
      The eight magazines in question consist of a collection of photographs showing young boys of the adolescent and preadolescent age group in a state of complete or partial nudity. The photographs have been cropped and the youngsters posed in a manner which highlights and emphasizes their exposed genitalia. In several instances, most noticeably on the back covers of both Phallic Development magazines, the cropping has been accomplished in such a way as to show the viewer nothing more than the genitals themselves and a small portion of the surrounding pubic region. Many photographs particularly those of the older boys, depict the penis in full or partial erection. A suggestion of masochism is present in several photographs by depicting totally nude youngsters bound by ropes while another is ensnared in a net. Among those photographs known in the trade as “singles,” i. e., those portraying only one model, several boys are shown fondling their penises while another manually lathers his semi-erect penis with soap. Among those photographs known in the trade as “duals,” i. e., those portraying two models, the youngsters are seen caressing, fondling, kissing, and embracing each other. In many instances the positions of the boys indicate that oral or anal sodomy is imminent. In one photograph {Boys Who Seduce Other Boys p. 33) it appears that anal sodomy is ongoing.
      Only four of the magazines contain any substantial text. They generally consist of “case histories” in which certain portions are emphasized with bold face type. These passages deal with such diverse sexual activities as fellatio, anal sodomy and masturbation. The photographs accompanying the text depict nude males embracing and fondling each other and are wholly unrelated to the text.

      . There was expert testimony to the effect that these materials would appeal to . pedophiles. A pedophile is an adult who has an erotic desire for a child. (Tr. 473-76, 478-80, 480-82, 525-26, 865-67, 903-07, 913, 915-16, 919-21, 933-35). Appellants concede that the magazines were directed at a homosexual audience. (Appellants’ Br. 28-29).

      . The appellants offered a variety of materials for comparison to those at issue in this case consisting of thirty-five magazines and ten posters, some of which had been held nonobscene by various courts. Defense Exhibits 23 and 24 are copies of a heterosexual magazine called Exciting held nonobscene in Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970). Nos. 25, 25a and 25b are “physique” magazines, Grecian Guild Pictorial, Trim; Manual, held non-obscene in Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). No. 26 is also a male physique magazine entitled Hellenic Sun held nonobscene in Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967). Similarly, the materials that were the subject of the reversals of convictions in Felton v. Pensacola, 390 U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220 (1968), magazines entitled, A Hundred Naked Rebels, Solis Review International No. 1, Review International No. 2 were offered as defendants’ exhibits Nos. 27, 27a, 27b, 27c. The ten posters (Defense Exhibits Nos. 28-281) consisted of large individual photographs of partially nude adult males held nonobscene by the Eighth Circuit in Spinar v. United States, 440 F.2d 1241 (8th Cir. 1971). Appellants also cite to us an unreported District Court decision which held non-obscene a number of copies of magazines of the Butch and Tiger series, depicting nude males in-doors, mostly in “singles” —where there are “duals,” the models are widely separated with no indication of sexual activity. United States v. Spinar, U.S.D.C.Minn. 4-67-Crim. 15 decided July 26, 1967. These magazines (.Butch and Tiger) together with another copy of A Hundred Naked Rebels and Male Nudist Portfolio which were also exonerated in this District Court decision were offered as Defense Exhibits Nos. 33-39. Defense Exhibits 32-32g are magazines appellants claim were purchased from their competitors and are quite similar to those at issue here. They depict nude males, both young and adult engaging in acts of fellatio, anal sodomy and masturbation. As to these publications, appellants admit that no court has ever considered them in an obscenity prosecution.

      . Compare Woodruff v. State, 11 Md.App. 202, 273 A.2d 436 (1971) ; Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962) ; In Re Harris, 56 Cal.2d 879, 16 Cal. Rptr. 889, 366 P.2d 305 (1961) with State v. Von Cleef, 102 N.J.Super. 102, 245 A.2d 495 (1968) ; State v. Jungclaus, 176 Neb. 641, 126 N.W.2d 858 (1964) ; People v. Finkelstein, 11 N.Y.2d 300, 229 N.Y.S.2d 367, 183 N.E.2d 661 (1962). In the Federal courts, compare Kahm v. United States, 300 F.2d 78, 84 (5th Cir. 1962) (admits evidence without discussion) with Miller v. United States, 431 F.2d 655, 659 (9th Cir. 1970) (excludes without discussion). See also, Annotation, “Modern Concept of Obscenity,” 5 A.L.R.3d 1158, 1195 § 16 [b] (1966) ; 50 Am.Jur.2d Lewdness, Indecency, and Obscenity § 37.

      . As one court points out, especially in light of the Redrup (Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967)) line of cases cryptically reversing a large number of obscenity convictions, “neither the trial judge nor anyone else could possibly tell the jury why the Supreme Court ruled that the exhibits were nonobscene; and it would serve no valid purpose to permit the jury to speculate as to what would be the holding of the Supreme Court with respect to the exhibits here in issue.” Huffman v. United States, 259 A.2d 342, 344 (D.C.App.1969), aff’d, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971). The specter of counsel for both parties arguing to the jury the nicqties of legal analysis and interpretation of cases is implicit in appellants’ proposed approach.

      . One court very recently described this procedure in the following terms:
      Where a sufficient foundation for its introduction has been laid, comparable matter held not obscene by the Supreme Court of the United States or of this state may be helpful in drawing this line; but, unless the comparable material equals or exceeds the subject book on all three elements of obscenity, to-wit: appeal to prurient interest; excess overaccepted standards; and lack of evidence of redeeming social importance, such comparable material does not require a finding of nonobscenity as a matter of law.
      People v. Kaplan, 23 Cal.App.3d Supp. 9, 100 Cal.Rptr. 372, 376 (1972).

      . See also People v. Kaplan, supra; Huffman v. United States, 259 A.2d 342 D.C.App.1969), aff’d, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971), petition for rehearing granted on other grounds, Aug. 10, 1972.

      . At times an appellate court, on review of the material involved in the prosecution, may decide that it is so similar to matter already held nonobscene by the Supreme Court as to require reversal as a matter of law. Spinar v. United States, 440 F.2d 1241 (8th Cir. 1971). See also Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972).

      . A more detailed discussion of the similarity of the exhibits appears infra, p. 379.

      . This concept of “contemporary community standards” is one of three elements of the test for obscenity laid down in the Roth case. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The standard, as further defined in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482, 486, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) ; Memoirs v. Massachusetts, 383 U.S. 413, 418-419, 86 S.Ct. 975, 16 L.Ed.2d 1; and Mishkin v. New York, 383 U.S. 502, 508, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), requires a showing:
      (a) That the dominant theme of the material taken as a whole appeals to a prurient interest in sex, Roth v. United States, supra, 354 U.S. at 488-489, 77 S.Ct. 1304, and that where the material is designed for and jirimarily disseminated to a clearly defined deviant group, rather than the public at large, the prurient appeal requirement is satisfied if it appeals to the prurient interest of that group. Mishkin v. United States, supra, 383 U.S. at 508, 86 S.Ct. 958.
      (b) That the material is patently offensive because it affronts national contemporary community standards relating to the description or representation of sexual matters. Manual Enterprises, Inc. v. Day, supra, 370 U.S. at 482, 486, 82 S.Ct. 1432.
      (c) That the material is utterly with-our redeeming social value. Memoirs v. Massachusetts, supra, 383 U.S. at 418-419, 86 S.Ct. 975.

        Part B of this opinion deals with the second element of the Roth test (part (b) above).

      . “THE COURT: . . . I can indicate to you that I am going to be bound by this Womack case in this trial, that is, the opinion written by Judge Prettyman.” (Tr. 21).

      . Indeed there was a wide divergence. For example, defendant attempted to introduce paintings of nudes by Titian, Rembrandt, Raphael, etc., for comparison purposes.

      . See generally, 1 Wigmore, Evidence §§ 24-29a (3d ed. 1940) ; McCormick, Handbook on the Law of Evidence § 185 (2d ed. 1954).

      . 152 U.S.App.D.C. 238, 470 F.2d 386 (1971), petition for rehearing granted on other grounds, Aug. 10, 1972. Petitions for rehearing were granted in Huffman on the narrow issue of the test for obscenity in light of the Supreme Court’s grant of certiorari in the pending case of Alexander v. Virginia, 212 Va. 554, 186 S.E.2d 43 (1972), cert. granted, 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 332 (1972). The evidentiary questions involved here were not reached in the opinion accompanying the order granting the petition for' rehearing nor is it at issue on certiorari to the Supreme Court.
      In this jurisdiction see also United States v. Gower, 316 F.Supp. 1390, 1395 n. 11 (D.D.C.1970).

      . United States v. Manarite, 448 F.2d 583 (2nd Cir. 1971) ; United States v. Jacobs, 433 F.2d 932 (9th Cir. 1970) ; United States v. West Coast News Co., 357 F.2d 855 (6th Cir. 1966) rev’d sub nom. on other grounds, Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967) ; Huffman v. United States, 259 A.2d 342 (D.C.App. 1969), aff’d, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971), petition for rehearing granted on other grounds, Aug. 10, 1972; State v. Carlson, 291 Minn. 368, 192 N.W.2d 421 (1971).

      . 361 U.S. at 172, 80 S.Ct. 215. However, he does not go so far as to say the exclusion of comparsion evidence would eonstitute a violation of due process. In his opinionomly a total absence of all kinds of expeft and objective testimony would so violate the due process clause.

      . See, e. g., United States v. Klaw, 350 F.2d 155, 170 (2nd Cir. 1965) ; United States v. 392 Copies of Magazine “Exclusive”, 253 F.Supp. 485 (D.Md.1966), aff’d 373 F.2d 633 (4th Cir. 1967) ; Woodruff v. State, 11 Md.App. 202, 273 A.2d 436 (1971) ; In re Seven Magazines, 268 A.2d 707 (R.I.1970) ; Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972). See also, Model Penal Code § 251.4. A small number of cases have understood this general policy to specifically mandate the admission of comparative evidence. Woodruff v. State, 11 Md. App. 202, 273 A.2d 436 (1971) ; Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962) ; In re Harris, 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305 (1961). But of. cases cited note 21, infra, which allude to the Smith rationale but find no inconsistency in also excluding comparative evidence.

      . United States v. West Coast News, Co., 357 F.2d 855, 861 (6th Cir. 1966) rev’d sub nom. on other grounds Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L. Ed.2d 1309 (1967) ; United States v. 392 Copies of Magazine “Exclusive”, 253 F. Supp. 485 (D.Md.1966) aff’d 373 F.2d 633 (4th Cir. 1967) ; People v. Finkelstein, 11 N.Y.2d 300, 229 N.Y.S.2d 367, 183 N.E.2d 661 (1962). Compare United States v. Klaw, 350 F.2d 155 (2nd Cir. 1965) with United States v. Manarite, 448 F.2d 583 (2nd Cir. 1971).

      . Womack v. United States, 111 U.S.App. D.C. 8, 10, 294 F.2d 204, 206, cert denied, 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961).

      . Such a showing can be made in a variety of ways. The most desirable method would entail a full hearing out of the jury’s presence in which the defendant can attempt to demonstrate the necessary foundational requirements. A good example of the proper procedural stance in these matters is found in United States v. West Coast News Co., 228 F. Supp. 171, 191-201 (W.D.Mich.1964) aff’d 357 F.2d 855 (6th Cir. 1966), rev’d sub nom. on other grounds Aday v. United States, 388 U.S, 447, 87 S.Ot. 2095, 18 L.Ed.2d 1309 (1967), in which the judge conducted a preliminary voir dire of the defendant’s experts:
      Instead of foreclosing the introduction of these books for comparison, on the ground that defendants failed to submit an offer of proof to preserve the contested'issue, the court granted a full opportunity for the defendants to present oral testimony, out of the presence of the jury, to establish the required similarity and acceptability as the basis for a “ticket of admission” for such proffered evidence. See Womack v. United States, supra, (294 F.2d page 206), citing Wigmore on Evidence, supra.
      228 F.Supp. at 196.

      . See note 16, supra.

      . Books, Inc. v. United States, 358 F.2d 935, 939 (1st Cir. 1966) rev’d on other grounds, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967). See also United States v. West Coast News Co., 357 F.2d 855, 860 (6th Cir. 1966) rev’d sub nom. on other grounds Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967) (“to avoid intolerable flooding of the record”) ; Huffman v. United States, supra, note 17, 152 U.S.App.D.C. at 256, 470 F.2d at 404; State v. Von Cleef, 102 N.J.Super. 102, 245 A.2d 495 (1968) ; State v. Henry, 250 La. 682, 198 So.2d 889, 896 (1967). See also Miller v. United States, 431 F.2d 655 (9th Cir. 1970).

      . “Singles” is the trade term for photographs of only one model, while “duals” applies to photographs of two or more. See note 4, sxipra.

      . See Huffman v. United States, supra note 17, 152 U.S.App.D.C. at 253, 256, 470 F.2d at 401, 404.

      . Id. 152 U.S.App.D.C. at 255-256, 470 F.2d at 403-404. See also Huffman v. United States, 259 A.2d 342, 344 (1969) : “. . . there is a vast difference between photographs portraying sexual activity between two nudes and photographs of single nudes. The tendered exhibits would have had no probative weight on the issue before the jury.” (emphasis added).

      . A Hundred Naked Rebels, Defense Exhibits No. 27 and 33; and the Butch and Tiger books, Exhibits No. 34-38. (Appellants’ Br. at 16).

      . This describes A Hundred Naked Rebels. The Buteh and Tiger books deal with adults. Most are singles but in the few duals the models are separated and there is no simulated sexual activity.

      . Bee note 25, supra and accompanying text.

      . Defense Exhibits 32-32g.

      . Appellants also contend that various court decisions around the country acquitting other defendants on obscenity charges relating to allegedly comparable materials serve a function outside of the “matter of law” role discussed- supra, Part A, in that they indicate a growing community acceptance of these materials. However, just as the evidence involved in those cases must be similar to appellants’ works in order to be introduced as comparison evidence, these court decisions have no logical bearing on the community aecejitance of the materials at issue in this case if there is a failure to show the Womaek foundation of similarity.

      . Woodruff v. State, 11 Md.App. 202, 273 A.2d 436 (1971) ; Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962) ; In Re Harris, 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305 (1961).

      . United States v. 392 Copies of Magazine “Exclusive”, 253 F.Supp. 485, 496 (D. Md.1966) aff’d 373 F.2d 633 (4th Cir. 1967). See also United States v. Gower, 316 F.Supp. 1390 (D.D.C.1970) ; United States v. Hochman, 175 F.Supp. 881 (E. D.Wis.1959) ; People v. Finkelstein, 11 N.Y.2d 300, 229 N.Y.S.2d 367, 183 N.E. 2d 661 (1962).

      . Counsel for appellants indicated at oral argument that he would have used the materials declared nonobscene by the Supreme Court to impeach the credibility of the Government’s expert witnesses who presumably would have testified that they considered these materials as exceeding the bounds of contemporary community standards.

      . It is only logical and certainly well within the judge’s discretion to refuse to permit witnesses to comment on matters already deemed immaterial to the issue at hand. Cf. State v. Henry, 250 La. 682, 198 So.2d 889, 895-896 (1967).

      . At least one court has felt this to be true:
      While [the Government’s] witnesses testified that in their personal view “Candy” far exceeded customary limits of candor, they admitted being totally unfamiliar with contemporary fiction. Two of the witnesses had indeed read “Tropic of Cancer,” but despite a clear Supreme Court holding to the contrary [Grove Press, Inc. v. Gerstein, 378 U.S. 577, 84 S.Ct. 1909, 12 L.Ed.2d 1035 (1964) ; see Commonwealth v. Robin, 421 Pa. 70, 218 A.2d 546 (1966) ] they continued to believe the book ought to be banned. While we respect these personal opinions, it does indicate that their views of contemporary standards differ markedly from those of the Supreme Court. [Some footnotes omitted.]
      Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840, 848 (1967).

      . Huffman v. United States, supra note 17, 152 U.S.App.D.C. at 243, 470 F.2d at 391:
      During the trial appellants attempted to challenge the assertion that the magazines were obscene by offering twenty-six other publications that had previously been declared non-obscene by the Supreme Court. The trial court refused to allow appellants to make this comparison to the jury birt permitted appellants to ash Dr. Cavanaugh whether six of the exhibits appealed to prurient interests. Dr. Cavanaugh testified that individual magazines in this group would appeal to the prurient interests of various classes of persons, including male and female homosexuals, heterosexual males, and pedophiliacs.
      (emphasis added).

      . Books, Inc. v. United States, 358 F.2d 935, 939 (1st Cir. 1966) rev’d on other grounds 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967).

      . In recent years the United States Supreme Court has on at least twenty-nine occasions reversed obscenity convictions and determinations involving various kinds of expression (books, photomagazines, films, etc.) on the authority of its cryptic per curiam opinion in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). (footnotes omitted).
      Commonwealth v. LaHonde, 447 Pa. 364, 288 A.2d 782 (1972) ; see also note 8 supra. (A full list of the twenty-nine decisions reversed by Redrup appears at n. 6 of LaLonde.) This has left the courts in some confusion as to the current constitutional standards for obscenity. More importantly, the Supreme Court has agreed to review many of the crucial questions in this area this term.

      . Admittedly it might be of value to show that an expert witness disagreed with the Supreme Court on a matter in which there has been a full, considered opinion clearly holding a particular publication nonobscene. However, there seems little value in allowing the jury to speculate as to the reasons for the court’s decision in the numerous reversals in which the court merely cites the cryptic Redrup opinion. See note 41 supra. In either situation it would be appropriate for the judge to instruct the jury as to the limited weight to be accorded to such a Supreme Court decision and that it is only relevant to the credibility of this particular witness.

      . See, e. g., 3 Wigmore, Evidence § 770 (Chadbourn Rev. 1970) ; McCormick, Handbook of the Law of Evidence § 29 (2d ed. 1954). .

      . Huffman v. United States, supra note 17, 152 U.S.App.D.C. at 245, 470 F.2d at 393 n. 7; Moore v. United States, 149 U.S.App.D.C. 150, 461 F.2d 1236 (1972).

      . United States v. Womack, Crim. No. 1351-70 (D.D.C., filed May 17, 1971) (Memorandum opinion and order on motion to suppress).

      . Huffman v. United States, supra note 17, 152 U.S.App.D.C. at 245, 470 F.2d at n. 7.

      . A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) ; Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

      . Moreover, even assuming arguendo that a prior adversary hearing were required, the remedy is merely to return the materials. A reversal of the convictions would not be required absent the aggravating factor of a search of impermissible scope. Huffman v. United States, supra note 17, 152 U.S.App.D.C. at 245, 470 F.2d at 393. Since here the scope is clearly reasonable, reversal would not be api>ropriate even if we were to agree with appellants’ contentions with regard to the need for a prior adversary hearing.

      . Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921) (Appellants’ Br. at 35).

      . This ease was submitted to the jury under instructions conforming to Roth-Memoirs (Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) ; Roth v. United States, 354 U.S. 476, 97 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)), which were more favorable to appellants than Miller test (c), supra.