author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY, Appellee, v. Norbert J. KREKELER and Krekeler Supermarket, Inc., d/b/a Indian Hills Tom Boy, a corporation, Appellants.
    No. 73-1523.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 14, 1974.
    Decided Feb. 13, 1974.
    Rehearing Denied March 4, 1974.
    Samuel T. Vandover, St. Louis, Mo., for appellants.
    Joseph M. Kortenhof, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is an action for declaratory judgment under 28 U.S.C. § 2201 brought by plaintiff Hartford Accident and Indemnity Company (Hartford) to determine the scope of coverage of an insurance policy issued by Hartford to defendant Krekeler Supermarket, Inc. It is conceded that such policy was in full force and effect at all times here material. Diversity of citizenship and the'jurisdictional amount (28 U.S.C. § 1332) are asserted and established.

Defendants are Krekeler Supermarket, Inc., and Norbert J. Krekeler, president, sole stockholder, sole director and manager of the corporation. Frank Donato was also made a defendant but he did not appear.

Frank Donato filed a suit in State court in St. Louis County, Missouri, to recover damages from Norbert J. Krekeler for trespass and a battery committed in connection therewith. The issue presented is whether plaintiff by its policy covers such transaction so as to require it to defend Krekeler in the State court action. The trial court held there was no coverage. Its opinion, reported at 363 F.Supp. 354 (E.D.Mo.1973), sets out findings of fact, conclusions of law and the basis of decision. The facts and pertinent provisions of the insurance policy are set out in the opinion.

The trial court determined plaintiff’s policy provided two types of coverage, to wit: (1) Comprehensive general coverage which applies to “an accident * * " neither expected nor intended from the standpoint of the insured.” (2) Personal injury liability. The court held that Krekeler was not covered by either type of insurance afforded. Krekeler does not attack the court’s determination that comprehensive general coverage is not applicable. Hence, such determination requires no consideration,

Krekeler relies exclusively upon the personal injury liability provisions of the policy which in material part provide:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called ‘‘personal injury”) sustained by any person or organization and arising out of one or more of the following offenses committed,in the conduct of the named insured’s business:
* * * * * *
Group C—Wrongful entry or eviction, or other invasion of the right of private occupancy; * * *

In rejecting coverage for personal injury liability the court stated:

Plaintiff Donato’s allegations that the defendants wrongfully entered his residence and invaded his right to private occupancy appear intended to state a cause of action for the tort of trespass. However, the only alleged injuries and actual damages are those proximately caused by the subsequent alleged battery. The Court concludes that under the law of Missouri, no cause of action for trespass is alleged since no proximately caused injuries and actual damages are alleged. Young v. Home Telephone Co., 201 S. W. 635, 636 (K.C.C.A.Mo.App.1918); Mawson v. Vess Beverage Co., 173 S.W.2d 606, 614 (S.L.C.A.Mo.App.1943.) 363 F.Supp. at 358.

The cases cited and relied upon by the trial court are distinguishable from the facts and pleadings in the case before us. In Mawson the injury occurred when plaintiff, at a time subsequent to the trespass, attempted to take down signs erected by the trespasser. In Young the telephone company had erected poles on plaintiff’s land without plaintiff’s consent. Plaintiff sought to collect what the court considered to be a rental of $5.00 per month for each pole. The court held that no rental could be collected as no landlord-tenant relationship had been established. The court also observed that the petition contained “no allegation setting forth the character and amount of damages recoverable for trespass.”

In the case before us, the pleadings as set out in footnote 1 supm indicate that the battery immediately followed the trespass. The trespass made the battery possible.

The record discloses that Donato’s wife had cashed checks at Krekeler’s Supermarket for $50.00 and $5.00 which were returned unpaid. On February 19, 1971, Donato called at' the market and paid $10.00 upon such checks but made no additional payments. On September 6, 1971, Krekeler went to Donato’s home to attempt to collect the balance. Krekeler knocked at the door, Donato’s son answered the knock, and at Krekeler’s request called his father to the door. A heated exchange of words at the door, followed by a fight, took place as a result of which Krekeler landed inside the house. There is a factual dispute as to who was the aggressor and with respect to the details of the fight. Such issues can best be resolved by the jury in the suit pending in the State court. All that is before us with respect to Dona-to’s version is a deposition which he filed in the State court.

In Hickey v. Welch, 91 Mo.App. 4 (1901), a lady was permitted to recover damages for personal injuries which the jury found she sustained by reason of a forcible trespass committed on her residence property. The court stated:

Moreover, the evidence tends to show the defendant’s entrance and acts on plaintiff’s premises constituted a forcible trespass, for which she is entitled to compensation; and her anguish on account of his violent and abusive conduct may be taken into account in connection with the trespass in aggravation of the damages. 91 Mo.App. at 14.

In Bouillon v. Laclede Gaslight Co., 148 Mo.App. 462, 129 S.W. 401 (1910), the trial' court’s dismissal of an action founded on a trespass on plaintiff’s property was reversed. The court cited and followed Hickey and in the course of its opinion stated:

Plaintiff is assured peaceful repose of her home against unwarranted intrusion from others. A trespasser is liable to respond in damages for such injuries as may result naturally, necessarily, directly, and proximately in consequence of his wrong. This is true for the reason the original act involved in the trespass is unlawful. Wyant v. Crouse, 127 Mich. 158, 86 N.W. 527, 53 L.R.A. 626. As to what matters do so result depends upon the particular facts of each case. The consequence may be one thing in one case and something different in another, but, be this as it may, if an injury is directly traceable to the unlawful invasion of plaintiff’s right as the proximate cause, a recovery may be had therefor. 129 S.W. at 402.

Restatement Torts 2d, § 162 reads:

Extent of Trespasser’s Liability for Harm. A trespass oh land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass, or to the land or to his things, or to members of his household or to their things caused by any act done, activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject him to liability were he not a trespasser.

See also Comment / under such section and Reporter’s Notes to § 162 in, Restatement Torts 2d App. To like effect, see 87 C.J.S. Trespass § 115, and 52 Am.Jur. Trespass, §§51 and 56.

In Lane v. Hartford Fire Insurance Co., 343 F.Supp. 79 (E.D.Mo.1972), Judge Webster held:

Under Missouri law, the duty of a liability insurer to defend pursuant to its agreement is ordinarily determined by comparing the language of the insuranee contract and the allegations of the petition or complaint in the action brought by the person injured or damaged against the insured. 343 F. Supp. at 82.
* * * * * *
Courts have generally placed the burden of uncertainty as to a policy’s coverage on the insurer. Where the allegations of a plaintiff’s complaint, albeit ambiguous, state a claim which is potentially or arguably within the policy’s coverage, the insurer must accept defense of the claim. 343 F.Supp. at 84-85.

This court has approved and applied the same principles in Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 536 (8th Cir. 1970).

When the foregoing principles are applied to the pleadings and facts of this case, we are satisfied that the plaintiff is required to defend Donato’s State suit against Krekeler. The court erred in holding otherwise.

Plaintiff’s contention that Krekeler is not covered by its policy on the ground that he does not qualify as “a person insured” lacks merit. The policy provides :

Each of the following is an insured under this insurance to the extent set forth below:
* * * * * *
(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such.

The named insured is in the policy as Krekeler Supermarket, Inc., the corporation. Krekeler clearly qualifies as an executive officer of the corporation acting within the scope of his duties in his effort to collect the Donato bad checks. The trial court did not hold otherwise on this issue.

Hartford makes the additional contention that no coverage exists with respect to punitive damages claimed by Donato. The trial court did not reach this issue. The issue is not properly before us. “ * * * (O)nce a complaint states one claim within the policy’s coverage, the insurer has a duty to accept defense of the entire lawsuit even though other claims in the complaint fall outside of the policy’s coverage.” Babcock & Wilcox Co., supra, p. 537 of 430 F.2d. The punitive damage issue, if it becomes material, can be more appropriately resolved in the State court proceedings. We express no view as to the merits of Donato’s claim.

The judgment of the trial court is reversed and this case is remanded to the trial court for further proceedings consistent with the views herein expressed.

      . Donato in Ms complaint alleges:
      That on the 6th day of September 1971, defendants did wrongfully enter upon the plaintiff’s residence premises at 9504 Brewer Road, in the County of St. Louis, State of Missouri, and invaded plaintiff’s right of private occupancy, and did maliciously, willfully, ruthlessly and viciously and intentionally punch, beat and strike the plaintiff about his body, thereby causing the plaintiff bodily harm and injuries as hereinafter alleged, and such contact was offensive to the sense of personal dignity of a reasonable person and caused plaintiff to suffer serious and permanent injuries, as hereinafter alleged.

      . The court’s reported opinion bears an April 16, 1973, date which is the date of filing of the court’s original opinion. On motion of Krekeler, the court amended its opinion by order filed June 1, 1973. The reported opinion incorporates the June 1, 1973, amendments,

      . The liability insurance provisions are set out in greater detail at p. 356 of 363 F.Supp.


source: Caselaw Access Project

author: EUGENE A. WRIGHT, Circuit Judge:

license: Public Domain

text:
    Patrick L. PAULSEN, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
    No. 72-1377.
    United States Court of Appeals, Ninth Circuit.
    Feb. 11, 1974.

      Daniel M. Sklar (argued), Lawrence K. Keethe, of Sklar, Kornblum & Coben, Los Angeles, Cal., for petitioner.
    R. Michael Senkowski (argued), Gen. Counsel, John W. Pettit, Gen. Counsel, Joseph A. Mariano, Associated Gen. Counsel, F. C. C., Washington, D. C., Howard E. Shapiro, Thomas E. Kauper, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for respondents.

       Of the District of Hawaii.

   OPINION

Before MERRILL and WRIGHT, Circuit Judges, and KING, District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Early in January 1972 petitioner Pat Paulsen, a professional entertainer and comedian, declared himself a serious candidate for the Republican nomination for President of the United States. He was a legally qualified candidate for the nomination and initiated an active campaign. He secured a place on the ballot in the New Hampshire primary, which was to be held on March 7,1972.

Paulsen had been employed by Walt Disney Productions, Inc. to perform in an episode of the television series, “The Mouse Factory.” Because the episode was soon to be released to television stations, the producer sought a declaratory ruling from the Broadcast Bureau of the Federal Communications Commission regarding the obligations of television stations that broadcast this show to give “equal opportunities” to other candidates pursuant to § 315 of the Communications Act of 1934 [47 U.S.C. § 315] , The Broadcast Bureau ruled that any national television appearances by Paul-sen would impose equal opportunities obligations upon broadcast licensees.

Paulsen requested review of this ruling, contending that “non-political” uses of the broadcast media by legally qualified candidates could not give rise to equal opportunities obligations under the statute without violating the Constitution. The FCC rejected the contention and affirmed the Broadcast Bureau’s ruling, prompting Paulsen’s appeal. We affirm the Commission.

Two issues are presented: (1) Does “non-political” use of a broadcast station by a professional entertainer, also a legally qualified candidate for public office, constitute “use of a broadcast station” within the meaning of § 315 of the Communications Act, giving rise to equal opportunities obligations? and (2) Does § 315 as applied by the Commission ruling unconstitutionally deny Paulsen equal protection and due process by forcing him to abandon his usual employment and livelihood in order to run for public office, other candidates for the same office not being likewise burdened ?

I

Congress enacted § 315 to encourage full and unrestricted discussion of political issues by legally qualified candidates. Farmers Educational and Cooperative Union v. WDAY, Inc., 360 U.S. 525, 529, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959). More specifically, the purpose of the section is to require a broadcaster to treat equally all candidates for a particular office or nomination once the broadcaster has made its facilities available to any one of the candidates. McCarthy v. F. C. C., 129 U.S.App.D.C. 56, 390 F.2d 471, 473 (1968). The FCC has interpreted the phrase “equal opportunities” to mean that there must be no discrimination in rates, facilities, practices, or services rendered to candidates. Use of Broadcast Facilities by Candidates for Public Office, 35 Fed.Reg. 13048, 13060 (1970). The FCC does not, however, require a station to donate time to a candidate who cannot afford time comparable to that paid for by his opponent. Letter to M. R. Oliver, 11 P&F Radio Reg. 239 (1952).

Paulsen claims the television appearances he makes as an entertainer, from which he derives a large portion of his livelihood, are absolutely non-political in nature. He has no control over their content and no opportunity to advance his political views. He claims the added television exposure does not indirectly enhance his political candidacy by making him more well-known to the public, since he is already well-known.

Paulsen’s basic argument is that the imposition of equal time obligations on stations which broadcast his shows fails to serve, and indeed hinders, the purpose of § 315. Acknowledging that a literal reading of the section supports the FCC’s position, he claims that the “vice” of the FCC’s ruling is that its rigid and indiscriminate application to “non-political” use of broadcast stations .does not further the objectives of the section.

The FCC responds that it must apply some strict rule regarding the application of § 315 in order to avoid the unauthorized enlargement of its involvement in broadcasting operations. Paul-sen’s proposed distinction between political and non-political use would, the FCC contends, require it to make highly subjective judgments concerning the content, context, and potential political impact'of a candidate’s appearance. We agree.

The FCC has issued four public notices in the last 20 years in which it has consistently maintained that any appearance by a political candidate during non-news programming constitutes a “use” under § 315. Use of Broadcast Facilities by Candidates for Public Office, 19 Fed.Reg. 5948 (1954); 23 Fed. Reg. 7817 (1958); 31 Fed.Reg. 6660 (1966); 35 Fed.Reg. 13048 (1970). In 1959 it even applied § 315 to an appearance by a political candidate in a newscast. This prompted Congress to review the FCC’s rulings on the question of what constitutes a “use” under the equal time provision. As a result of this review, Congress amended § 315 to exempt appearances in newscasts, news interviews, news documentaries, and on-the-spot news coverage. At the time of this amendment, Congress fully reviewed FCC rulings under § 315, including those that held the section applicable to a candidate’s appearance not in the aid of his candidacy. Congress did not, however, choose to exempt such appearances from § 315’s scope. This, coupled with a literal reading of the language Congress uses in § 315, leads us to conclude that the FCC’s failure to distinguish between political and “non-political” broadcast use by a candidate is consistent with congressional intent. See Kay v. F. C. C., 143 U.S.App.D.C. 223, 443 F.2d 638, 646-647 (1968).

It appears clear that Paulsen’s “Mouse Factory” appearance resulted from his status as an entertainer rather than as a candidate. However, unless a clear rule exists that all broadcast use by a political candidate subjects a station to equal time obligations, broadcasters and ultimately the FCC would be forced to examine the nature of a candidate’s every appearance to determine whether it falls under § 315. If the section were invoked only when political issues were actually discussed, detailed guidelines would have to be drawn to determine the precise contours of political discussion. Additionally, a station could support one candidate by inviting him or her to appear on numerous shows but strongly discouraging the discussion of political issues. True, Paulsen might not benefit from such treatment if, as he says, he is already well-known to the viewing public, but a less popular and less well-exposed candidate could surely benefit from the exposure. To define such appearances as non-political is to apply a rather narrow and perhaps a bit naive definition of “political.”

Section 315 is grounded in the recognition that radio and television play important roles in the election process. A candidate who becomes well-known to the public as a personable and popular individual through “non-political” appearances certainly holds an advantage when he or she does formally discuss political issues to the same public over the same media.

A more stringent standard imposing equal opportunities obligations not only when a candidate actually discusses political issues but also when the appearance is merely prompted by one’s candidacy could be even more unworkable and require a greater degree of broadcaster and FCC involvement.

The Supreme Court recently ruled in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), that neither the Fairness Doctrine nor the First Amendment requires a broadcaster to accept paid editorial advertising. One of the Court’s concerns was that such a requirement would result in the FCC having to make day-today decisions concerning whether a particular individual has been given sufficient opportunity to present his viewpoint and whether a given viewpoint has already been sufficiently aired. The Court found distressing this potentially enlarged involvement of the government in broadcasting operations. Id. at 126-127, 93 S.Ct. 2080. See also Farmers’ Union v. WDAY, supra, 360 U.S. at 528, 79 S.Ct. 1302. A similar concern in a different context exists in the case before us, a concern alleviated by adherence to the FCC’s present well-defined rule.

II

Paulsen argues that if his “nonpolitical” appearances fall within the scope of § 315, the statute as applied is unconstitutional as a denial of equal protection and due process because it forces him to give up his means of livelihood as a television performer in order to run for office. Paulsen asserts that, unlike persons in other occupations, a professional performer who is not wealthy enough to forego work on television during a campaign is effectively eliminated from attaining public office: He could be precluded from making any television appearances solely for political purposes, and without these he could not win.

Paulsen bases his constitutional argument primarily on Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). There the Court struck down a Texas filing-fee scheme that barred candidates from running in primary elections unless they paid fees ranging from $50 to $8,900. The Texas statute applied only to party primaries, and a candidate who was unable to place his name on the primary ballot could still gain a place on the general election ballot without payment of fees by submitting a proper application accompanied by a voter petition. The Court found, however, that in certain parts of Texas the primary election may be more crucial than the general election, and it did not accept as reasonable a requirement forcing candidates and voters to abandon party affiliations in order to avoid an economically burdensome state filing fee. 405 U.S. at 146-147, 92 S.Ct. 849.

The Court held that fees of the magnitude involved fell with unequal weight on candidates and voters according to their ability to pay and that the statute had to be struck down since it was not “reasonably necessary" to accomplish a legitimate state objective. Paulsen contends the FCC’s ruling also falls with unequal weight—on performers not wealthy enough to stop working during their campaigns.

While this argument has some appeal, we do not agree that Bullock v. Carter compels its acceptance. In Bullock the Court applied neither a compelling state interest test nor a rational basis test. Rather it required that, upon “close scrutiny,” the Texas filing-fee system be “reasonably necessary to the accomplishment of legitimate state objectives.” 405 U.S. at 144, 92 S.Ct. at 856. Texas maintained that the fees were necessary to regulate the primary ballot and to finance elections. The Court found, though, that the fees served no rational regulatory purpose and that the state interest in saving election costs did not justify a system that excluded poorer candidates unable to pay the fees.

We find that § 315 as interpreted by the FCC, on the other hand, is both reasonable and necessary to achieve the important and legitimate objectives of encouraging political discussion and preventing unfair and unequal use of the broadcast media. The section therefore passes constitutional muster.

Affirmed.

      . Section 315(a) provides in relevant part: If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. . . . 47 U.S.C. § 315(a).

      . Although Paulsen is no longer a legally qualified candidate for the Republican nomination for President, neither party suggests that this case is moot, nor do we feel it is. The FCC’s ruling has a continuous and prospective effect on the relationship between Paulsen’s right to qualify as a candidate and campaign for public office and his continuing status as a professional entertainer. The issues are concrete, and Paulsen’s interest and that of others similarly situated warrants their adjudication. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969).

      . The Senate Committee on Interstate and Foreign Commerce recognized that this exemption provided the opportunity for a broadcaster to push his favorite candidate and to exclude others. The committee concluded, however, that the benefits to the public that flow from the unrestricted presentation of candidates on news-type programs “are so great that they outweigh the risk that may result from the favoritism that may be shown by some partisan broadcasters.” Sen.Rep.No.562, 86th Cong., 1st Sess., U.S.Cong. & Adm.News 2564, 2572 (1959).

      . The FCC uses a question and answer format to clarify its interpretation of the meaning and scope of § 315. In 1958 the FCC published the following:
      B. What constitutes a “use" of broadcast facilities entitling opposing candidates to “equal opportunities"?

      4. Q. If a legally qualified candidate secures air time but does not discuss matters directly related to his candidacy, is this a use of facilities under section 315?
      A. Yes. Section 315 does not distinguish between the uses of broadcast time by a candidate, and the licensee is not authorized to pass on requests for time by opposing candidates on the basis of the licensee’s evaluation of whether the original use was or was not in aid of a candidacy. (WMCA, Inc., 7 R.R. 1132.)
      5. Q. Must a broadcaster give equal time to a candidate whose opponent has broadcast in some other capacity than as a candidate?
      A. Yes. For example, a weekly report of a Congressman to his constituents via radio or television is a broadcast by a legally qualified candidate for public office as soon as he becomes a candidate for reelection, and his opponent must be given “equal opportunities” for time on the air. Any “use” of a station by a candidate, in whatever capacity, entitles his opponent to “equal opportunities.”
      (Station KNGS, 7 R.R. 1130.)
      6. Q. If a candidate appears on a variety program for a very brief bow or statement, are his opponents entitled to “equal opportunities” on the basis of this brief appearance?
      A. Yes. All appearances of a candidate, no matter how brief or perfunctory, are a “use” of a station’s facilities within section 315.
      11. Q. If a station owner, or a station advertiser, or a person regularly employed as a station announcer were to make any appearances over a station after having qualified as a candidate for public office, would section 315 apply? A. Yes. Such appearances of a candidate are a “use” under section 315. (Letters to KUGN, dated April 9, 1958; to KTTV, 14 R.R. 1227; and to Kenneth Spengler, 14 R.R. 1226b, respectively.)
      Use of Broadcast Facilities by Candidates for Public Office, 23 Fed.Reg. 7817, 7818 (1958).

      . See note 3 supra and accompanying text.

      . See generally Comment, A Constitutional Remedy for the High Cost of Broadcast and Newspaper Advertising in Political Campaigns, 60 Calif.L.Rev. 1371 (1972), where the author proposes that the equal proteetion clause forbids broadcast licensees and newspaper publishers from discriminating in the allocation of campaign advertising on the basis of ability to pay.


author: TALBOT SMITH, Senior District Judge.

text:
    Florence METCALFE, Administratrix of the Estate of John E. Metcalfe, Deceased, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant.
    No. 73-1481.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 15, 1973.
    Decided Feb. 5, 1974.
    Rehearing Denied Feb. 28, 1974.

      Peter J. Crouse, of Grant, Shafroth, Toll & McHendrie, Denver, Colo., for defendant-appellant.
    Daniel D. Sawyer, of Hubbell, Lane & Sawyer, Kansas City, Mo., for plaintiffappellee.
    Before HILL and BARRETT, Circuit Judges, and SMITH, Senior District Judge.

       Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The present action was instituted in the United States District Court for the District of Colorado by Florence Metcalfe, widow of John E. Metcalfe and administratrix of his estate, against the appellant, Atchison, Topeka and Santa Fe Railway Company, to recover damages under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., for a violation of the Safety Appliance Act, 45 U.S.C. § 1 et seq., which allegedly contributed to the injury and death of her husband. The jury returned a verdict in favor of appellee in the sum of $107,000 plus costs. From the judgment entered on the verdict and the order of the district court denying its motion for judgment notwithstanding the verdict or for a new trial, the Railroad appeals.

The principal question presented for review is whether there was sufficient evidence to support the jury’s findings that the Railroad violated § 2 of the Safety Appliance Act and that this violation was a cause, in whole or in part, of the injury and death of Metcalfe. Additionally, the Railroad attacks the jury’s award of damages as excessive.

On July 30, 1970, before dawn, Metcalfe was working in the Railroad’s Colorado Springs yards as foreman of a switch crew, a position he had held for eighteen years. The crew had coupled onto the front end of the switch engine, heading north on the team track, which runs generally north and south, a piggyback ear. The ultimate objective was to back the engine and the piggyback car to the south on the team track until reaching the wye track which, roughly speaking, forms a triangle to the west with the hypotenuse of the team track, and to proceed down the north leg of the wye track, eventually pushing the piggyback car onto the south leg of the wye track and thereby turning it around. En route to the wye track, a box car was coupled to the north end of the piggyback car. So constituted, the train continued backing until the engine and most of the piggyback car were situated on the north leg of the wye track. At this point Metcalfe informed his switch-man helper, Dwight Fields, that they would uncouple the box car and leave it stationary on the team track. Fields was positioned ten to twenty feet east of the train so as to pass signals around the curve from Metcalfe to the engineer. By means of a lever on the east side of the piggyback car, and without going between the ends of the cars, Metcalfe uncoupled the piggyback car and the box car. Having done so, he gave a back-up signal to Fields, and, after the engine and piggyback car had moved ten to twenty feet to the southwest, a stop signal. Then Metcalfe stepped between the cars and, facing north, opened the knuckle on the box car. Fields meanwhile had taken four or five steps towards the front of the train before glancing back at Metcalfe. Metcalfe was standing between the piggyback car and the box car and facing south or southeast. As Fields watched, he “dropped straight down out of sight.” Fields, as yet not alarmed, walked back to where Metcalfe had disappeared from view and found him pinned beneath the southeast wheel of the box car, six to fifteen feet north of the piggyback car.

After the arrival of an ambulance, it was decided to reeouple the piggyback ear and box car in order to move the box car northward and free of Metcalfe’s body. At this time it was noticed that the drawbar on the coupler of the piggyback car was slanted toward the east to such an extent that it was necessary to realign it, going between the cars to do so, in order to make the coupling.

Appellee claims that the jury was entitled to infer from these facts that Metcalfe, after he had opened the knuckle on the box car, noticed the misaligned drawbar on the piggyback car and was proceeding to adjust it when the box car moved southward, crushing him under one of its wheels. The necessity of going between the ears to adjust a misaligned coupler, according to appellee, constitutes a violation of § 2 of the Safety Appliance Act. The Railroad, in turn, contends that there is insufficient evidence that Metcalfe was between the cars for any purpose other than opening the knuckle on the box car and that, even if Metcalfe was proceeding to adjust the coupler, such action was premature. It is the Railroad’s position that the sole cause of the accident was Metcalfe’s negligence in stepping in front of the box car to open the knuckle without having chocked the wheels or set the brakes in a manner sufficient to prevent the box car from rolling.

The Federal Safety Appliance Act, adopted in 1893, forced the railroads to install appliances designed to eliminate some of the more hazardous aspects of railroad work. The Act did not, of itself, create a federal cause of action imposing civil liability upon the railroads for violations. Rather, it imposed sanctions in the form of monetary penalties. In 1908, however, Congress, via the Federal Employers’ Liability Act [FELA], provided railroad employees with a cause of action based on violations of the Safety Appliance Act. 45 U.S.C. § 51. The peculiar characteristics of this newly-created cause of action were described by Mr. Justice Brennan in Crane v. Cedar Rapids & I. C. R. R., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969), as follows:

“In such actions, the injured employee [or his or her personal representative in case of death] is required to prove only the statutory violation and thus is relieved of the burden of proving negligence. . . He is not required to prove common-law proximate causation but only that his injury resulted ‘in whole or in part’ from the railroad’s violation of the Act, . . . and the railroad is deprived of the defenses of contributory negligence and assumption of risk . . . . ” (citations omitted) 359 U.S. at 166, 89 S.Ct. at 1708.

The standard applied by federal courts in determining whether there is sufficient evidence to send a FELA case to the jury is significantly broader than the standard applied in common law negligence actions. As stated by the United States Supreme Court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” See Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S.Ct. 443,1 L.Ed.2d 493 (1957); Missouri-Kansas-Texas Ry. v. Hearson, 422 F.2d 1037 (10th Cir. 1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969); Chicago R.I. & P.R.R. v. Melcher, 333 F.2d 996 (8th Cir. 1964); Prosser, Torts § 80, p. 536 (4th ed. 1971). To this standard, however, must be added the admonition found in Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944): “The essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked,” See Missouri-Kansas-Texas Ry. v. Hearson, supra, 422 F.2d at 1041.

As already noted, appellee alleged that the Railroad violated § 2 of the Safety Appliance Act, 45 U.S.C. § 2, in that the coupler of the piggyback car was misaligned to such an extent as to preclude coupling automatically by impact.

Section 2 reads:

It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

There is no dispute but that all of the Railroad’s cars are equipped with “automatic couplers” in the sense that the cars can ordinarily be coupled together without men going between the ends of the cars. The coupling apparatus, however, permits limited movement of the drawbar from side to side in order to allow the cars, when coupled together, to pass around curves without derailment and to allow coupling on a curve. In some cases, the drawbar may move so far off-center as to preclude automatic coupling. In such cases, it is necessary to go between the cars to adjust the drawbar.

A substantial number of state and federal courts have found that a failure to couple automatically because of a misaligned drawbar is sufficient to sustain a finding that § 2 has been violated. San Antonio & A. P. Ry. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110 (1916); Atlantic City R. R. v. Parker, 242 U.S. 56, 37 S.Ct. 69, 61 L.Ed. 150 (1916); Kansas City S. Ry. v. Cagle, 229 F.2d 12 (10th Cir. 1955), cert. denied, 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. 1443 (1956); Chicago, St. P., M. & O. Ry. v. Muldowney, 130 F.2d 971 (8th Cir.), cert. denied, 317 U.S. 700, 63 S.Ct. 526, 87 L.Ed. 560 (1942); Hampton v. Des Moines & Cent. I. R. R., 65 F.2d 899 (8th Cir. 1933); Hohenleitner v. Southern Pac. Co., 177 F. 796 (C.C.D.Or. 1910); Finley v. Southern Pac. Co., 179 Cal.App.2d 424, 3 Cal.Rptr. 895 (1960); Hallada v. Great Northern Ry., 244 Minn. 81, 69 N.W.2d 673, cert. denied, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773 (1955); White v. Atchison, T. & S. F. Ry., 244 S.W.2d 26 (Mo.1951), cert. denied, 343 U.S. 915, 72 S.Ct. 648, 96 L.Ed. 1330 (1952); Chicago, R. I. & P. Ry. v. Ray, 67 Okl. 77, 168 P. 999 (1917), cert. denied, 246 U.S. 662, 38 S.Ct. 332, 62 L.Ed. 927 (1918); Kansas City, M. & O. Ry. v. Wood, 262 S.W. 520 (Tex.Civ.App.1924); McGowan v. Denver & R. G. W. R. R., 121 Utah 587, 244 P.2d 628, cert. denied, 344 U.S. 918, 73 S.Ct. 346, 97 L.Ed. 707 (1952).

The Railroad vigorously argues, however, that the fact that the drawbar on the piggyback car had to be realigned before it would couple with the box car does not establish that the piggyback car would not have automatically coupled, misaligned drawbar and all, with whatever car with which it would eventually have been coupled, but for the intervenimg accident. Similarly, the Railroad suggests that even if Metcalfe was attempting to realign the drawbar, such action was premature until it was determined with which car the piggyback ear would be coupled and whether realignment would be necessary under the circumstances.

The Railroad’s argument ignores, however, evidence from which the jury was entitled to infer that the piggyback car would not have successfully automatically coupled with any car without realignment of the drawbar. In reviewing the sufficiency of the evidence to support the jury verdict for appellee, of course, we must resolve all conflicts against appellant, and award appellee the benefit of such favorable inferences as the jury might reasonably have drawn. Chicago, St. P., M. & O. Ry. v. Muldowney, supra, 130 F.2d at 973.

According to Swede Nelson, the brakeman who adjusted the drawbar on the piggyback car before recoupling the piggyback into the box car, the drawbar on the former was out of line “to the extreme east.” In Hampton v. Des Moines & Cent. I. R. R., supra, 65 F.2d at 901, testimony that the drawbar was four or five inches out of line and that the drawbar would not couple on impact in that position “constituted substantial evidence that the coupler was defective.” See Geraghty v. Lehigh Valley, R. R., 70 F.2d at 303; White v. Atchison, T. & S. F. Ry., supra, 244 S.W.2d at 29-30. We find that the jury, or for that matter, Metcalfe, could have reasonably concluded that a drawbar misaligned “to the extreme east” would not couple on impact, particularly in view of the practice of the Railroad, as testified to by several of its employees, of keeping drawbars centrally aligned at all times, and of coupling on a straight track as opposed to a curved track whenever feasible.

Having determined the existence of probative facts to support the finding of the jury that § 2 was violated, we turn to the question of the sufficiency of the evidence to support a causal connection between the statutory violation and Metcalfe’s injury and death.

The quantum of evidence necessary to prove a causal connection in an FELA case was carefully considered in Rogers v. Missouri Pac. R. R., supra, Mr. Justice Brennan stating:

“Under this statute [FELA] the test of a jury ease is simply whether the proofs justify with reason the conclusion that employer negligence [or employer violation cf. the safety-appliance statutes] played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.” 352 U.S. at 506, 77 S.Ct. at 448.

See Missouri-Kansas-Texas Ry. v. Hearson, supra; Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965).

Applying this test to the facts of the present case, we must agree with the trial court that appellee provided sufficient proof to sustain the finding of the jury that the statutory violation on the part of the Railroad contributed in some degree to Metcalfe’s injury and death. Metcalfe faced north to open the knuckle on the box car. When Fields glanced back at him, Metcalfe was facing south or southeast, a position consistent with appellee’s theory that Metcalfe intended to realign the drawbar on the piggyback car. It is clear that it was Metcalfe’s duty to realign drawbars when they moved so far out of line as to prevent coupling. The engineer of the train, Thomas Brooke, testified that although he had moved the train approximately twenty feet to the southwest, Metcalfe was found only twelve feet north of the piggyback car, permitting the inference that Metcalfe had walked some distance in the direction of the piggyback. In Geraghty v. Lehigh Valley R. R., supra, the sole fact that a railroad employee had stepped between the cars “as [if] to adjust a coupling” was held sufficient to support a causal connection between a defective coupler and the railroad employee’s injury and death. See Chicago, R. I. & P. Ry. v. Ray, supra; cf. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Tennant v. Peoria & P. U. Ry., supra, 321 U.S. at 35, 64 S.Ct. 409, 88 L.Ed. 520.

Language in Tennant v. Peoria & P. U. Ry., supra, appropriately summarizes our reasons for refusing to disturb the present verdict:

“The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weights the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers the most reasonable. * * * That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions . . . . ”

321 U.S. at 35, 64 S.Ct. at 412.

Finally, the Railroad asserts that the verdict was so excessive as to suggest that it was the result of passion or prejudice on the part of the jury. We do not agree.

It is the well-settled rule in this circuit that “absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the fact is considered inviolate.” Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962). See Brown v. Richard H. Waeholz, Inc., 467 F.2d 18 (10th Cir. 1972); Ketchum v. Nall, 425 F.2d 242 (10th Cir. 1970); Lane v. Gorman, supra, 347 F.2d at 335.

Under FELA, appellee was entitled to recover four separate items of damages: 1) the present value of financial contributions which the decedent would reasonably be expected to have given his wife and son had he lived; 2) the pecuniary value of services which his wife might reasonably have expected to receive from him in the future; 3) loss to the son during his minority of the training, nurture, education and guidance of his father; and 4) conscious pain and suffering of the decedent prior to death. See DeParq & Wright, Damages Under the Federal Employers’ Liability Act, 17 Ohio St.L.J. 430 (1956).

The jury’s verdict of $107,000 was a general one, so we have no way of knowing the specific amount allocated to each item. Nevertheless, the award as a whole falls well within the perimeters of reasonableness in this case. Appellee’s actuary computed the present worth of future contributions as $79,179.11. Metcalfe performed extensive services for his wife, including painting, carpentry, plumbing, gardening and caring for the family automobiles. He participated actively with his son in sports, school, church and 4-H activities. ,As to the pain and suffering he endured before his death, there was evidence that he remained conscious for at least fifteen minutes following the accident.

The Railroad raises two specific objections to appellee’s evidence on damages: 1) that Mrs. Metcalfe overestimated her husband’s actual monthly take-home pay i and 2) that future contributions were computed until Metcalfe would have reached retirement age instead of over his work-life expectancy.

According to the records of the Railroad, Metcalfe earned gross wages of $9,329.27 in 1969. Mrs. Metcalfe supplied an actuary with information from which he calculated that 59.95% of Metcalfe’s wages in 1969 had been contributed to his family. Regardless of any discrepancy between the information supplied by Mrs. Metcalf and a bank deposit slip introduced into evidence by the Railroad, we think the jury was entitled to adopt the actuary’s calculations. As testified to by several witnesses, Metcalfe was a singularly generous and unselfish husband and father.

Appellee’s actuary computed the loss of future contributions over a nine year period—until Metcalfe would have attained customary retirement age. The Railroad argues that the loss should have been measured over Metcalfe’s work-life expectancy, 7.92 years. We agree, however, with those authorities which take the position that work expectancy is just one more factor to be taken into consideration in determining what the decedent could have expected to earn in the future. See DePraq & Wright, supra, at 455; S. Speiser, Recovery for Wrongful Death § 3.14 (1966). The trial judge so instructed the jury.

Judgment affirmed.

      . For a detailed description of couplers, see McGowan v. Denver & R.G.W.R.R., 121 Utah 587, 244 P.2d 628, 630 n. 2, cert. denied, 344 U.S. 918, 73 S.Ct. 346, 97 L.Ed. 707 (1952).

      . The General Foreman of the Car Department of the Railroad, J. D. Martin, testified that automatic realigning, as opposed to automatic coupling, devices are still in the experimental stages, and have been installed on less than one per cent of railroad cars. He also testified that the Railroad has never received a citation for violation of the Safety Appliance Act from the Department of Transportation for failure to equip its cars with automatic religning devices.
      The record is unclear as to the current state of automatic realigning devices throughout the entire railroad industry. Nor is it clear what other alternatives there may be to sending railroad employees between the ends of the ears to adjust misaligned couplers. Nevertheless, as has been repeatedly emphasized by the courts, “The ultimate end sought by the [Safety Appliance Act] is the coupling and uncoupling of cars used in interstate traffic without the necessity of going between them.” Hohenleitner v. Southern Pac. Co., 177 F. 796 (C. C.D.Or.1910). The obligations imposed upon the railroads by the Act are “absolute . . ., not based upon negligence.” Carter v. Atlanta & St. A.B. Ry., 338 U.S. 430, 434, 70 S.Ct. 226, 94 L.Ed.2d 236 (1949).

       Bracketed material ours. See Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1949).


author: PER CURIAM:

text:
    Charles B. KANE, d/b/a Kane's Diesel & Truck Repair, Plaintiff-Appellant, v. MOTOR VESSEL LEDA, her engines, etc., et al., Defendants-Appellees, Westside Auto Supply, Inc. and American Marine & Equipment Co., Inc., Intervenors.
    No. 73-1782.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.
    Rehearing and Rehearing En Banc Denied May 6, 1974.

      Louis R. Koerner, Jr., New Orleans, La., for plaintiff-appellant.
    Rene S. Paysse, Robert B. Sutherlin, Kenneth J. Berke, New Orleans, La., for defendants-appellees.
    David R. Normann, Jack J. Charbonnet, New Orleans, La., for Westside Auto Supply.
    Leopold Stahl, New Orleans, La., for American Marine & Equip. Co., Inc.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   PER CURIAM:

In this admiralty action the district court found that Kane, who furnished work and materials to the vessel M/V LEDA, at the request of the charterer, was not entitled to a maritime lien on the vessel. Judgment was entered against the owner, however, for unjust enrichment damages.

The trial court made extensive findings of fact. It found that the charterer was not “a person authorized by the owner” to bind the vessel for the labor and materials furnished by Kane and that the latter did not, therefore, have a maritime lien on the vessel. 46 U.S.C.A. § 971. But the court further found that Kane had an admiralty claim for unjust enrichment in personam against Leda Towing Company, Inc., the owner. The findings are not clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. On the contrary, the record fully supports these findings.

By a plethora of arguments based on Louisiana law, Kane argues that an admiralty court should apply state law to create a lien on the vessel or to revoke the subsequent sale of the vessel. To do this, as the district court properly held, would be destructive of the principle of uniformity in federal maritime law. Moreover, to subordinate the maritime law to Louisiana law, as Kane argues, would defeat the provisions of 46 U.S.C.A. § 973.

By our disposition of this federal action, we do not, of course, intimate any views on the merits of claims Kane may have under state law.

We have considered the other points on appeal urged by Kane and find them to be without merit.

Affirmed.

      . On March 14, 1972, full findings of fact and conclusions of law were made. On October 27, 1972, further findings and conclusions were made granting unjust enrichment damages against Leda Towing Co., Inc., but refusing such damages against the Vials, purchasers of the vessel. Finally, on February 6, 1973, the court rendered its opinion on plaintiff’s motion to amend the findings of fact and for a new trial.


author: ALDRICH, Senior Circuit Judge.

text:
    In re Arthur MARCUS, Appellant.
    No. 74-1006.
    United States Court of Appeals, First Circuit.
    Argued Jan. 25, 1974.
    Decided Jan. 31, 1974.
    Robert F. Muse, Boston, Mass., with whom Michael J. Muse, Boston, Mass., was on brief, for appellant.
    Marc Philip Richman, Atty., Dept. of Justice, with whom James N. Gabriel, U. S. Atty., George F. Kelley, Sp. Atty., Boston Strike Force, and John J. Robinson, Atty., Dept. of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

This is an appeal from an order of the district court holding appellant Marcus in civil contempt for refusal to answer questions propounded to him before a grand jury after, following a grant of immunity pursuant to 18 U.S.C. § 2514, he had been directed to answer by the district court. 28 U.S.C. § 1826(a). His sole defense is that the questions asked were based upon an electronic surveillance allegedly improperly authorized by the district court. 18 U.S.C. § 2515, post. The alleged impropriety was lack of proper initial Attorney General, or specially designated Assistant Attorney General, authorization, 18 U.S.C. § 2516(1), the so-called Will Wilson defect, aspects of which are presently pending before the Supreme Court. United States v. Giordano, 4 Cir., 1972, 469 F.2d 522, cert. granted 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194; United States v. Chavez, 9 Cir., 478 F.2d 512 (1973) cert. granted 412 U.S. 905, 93 S.Ct. 2292, 36 L.Ed.2d 969. At the hearing before the district court the government conceded that this was a Will Wilson case, as, indeed, is apparent from the face of the order, but took the position that Marcus was precluded, in connection with grand jury proceedings, from relying upon it. The court agreed. Pursuant to the command contained in 28 U.S.C. § 1826(b) we render our decision within 30 days.

Both parties point to Gelbard v. United States, 1972, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179. In that case the Court reversed the decision in United States v. Gelbard, 9 Cir., 1971, 443 F.2d 837, and affirmed in In re Grand Jury Proceedings, Harrisburg, Pennsylvania (Egan), 3 Cir., 1971, 450 F.2d 199. The Ninth Circuit had held in a situation similar to the one at bar that a grand jury witness had no standing to complain of the illegality of his surveillance as a defense in a civil contempt proceeding. In Egan the district court had similarly precluded inquiry by the witness into the subject of electronic surveillance and held him in contempt, but the Third Circuit reversed and remanded for a hearing.

Although the Court affirmed the Third Circuit, and reversed the Ninth, the full import of that decision may be debatable. We start, accordingly, with the statutory scheme.

18 U.S.C. § 2515 reads as follows.

“Prohibition of use as evidence of intercepted wire or oral communications.
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” (emphasis suppl.)

Our first question is the meaning and possible interrelationship of section 2518(10)(a).

“Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion of the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.” (emphasis suppl.)

We have held that because this latter section, unlike section 2515, does not mention grand juries, a prospective witness before a grand jury has no standing to be heard on a motion to suppress. Cali v. United States, 1 Cir., 1972, 464 F.2d 475. Such a conclusion does not, the Court held in Gelbard, mean that the witness, faced with contempt proceedings, cannot invoke the provisions of section 2515.

The Court, concededly, took only first steps. It recognized the legislative history that tied the sections together, but held that the fact that Congress may not have intended that a prospective grand jury witness be able to suppress the use of what the government had obtained by an unlawful surveillance did not mean he was deprived of all rights to refuse to give testimony when he himself is questioned as a result of what the surveillance had uncovered. This was not a determination of what those rights are, or that he, or any other witness, was intended to have greater substantive objections to testifying than those recognized as grounds for suppression in section 2518(10)(a). So far as possible we believe we should respect the legislative history tying sections 2515 and 2518(10) (a) together. It would be singular, vis-a-vis others than grand jury witnesses, to give them rights to suppress under section 2518(10) (a)—indeed, to insist that they assert them as promptly as possible—and at the same time preserve a residue of further rights that they could assert at a later time. It would be equally singular to give grand jury witnesses greater defenses against testifying than the rights to suppress accorded other persons subjected to electronic surveillance, unless this grant was constitutionally deficient.

Turning to section 2518(10) (a), the three grounds stated for suppressing testimony are,

“(i) the communication was unlawfully intercepted;
(ii) the order or authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.”

We construe subsection (i) as covering, broadly, all common law or constitutional objections, electronic surveillance being a form of search and seizure, see, e. g., Berger v. New York, 1967, 388 U. S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, but, since statutory violations are embraced in the other sections, not statutory ones. It is true that the subsections addressed to violations of the statutory procedure do not include every possible violation. Having, however, preserved all constitutional claims, we see no reason why Congress, having set up various additional procedural requirements for electronic surveillance, cannot determine what shall be the consequence of their violation, defining the occasions, and the extent, to which persons can assert and rely upon them. Limiting these occasions does not mean that the statute can be ignored with impunity and Congressional policy frustrated. Congress provided consequences for all violations even though they did not fall within section 2518(10)(a)(ii) and (iii). See 18 U.S.C. § 2511(1) (criminal penalties); 18 U.S.C. § 2520 (civil damages). We do not share Chief Judge Coffin’s view that it would be unreasonable for it to think this adequate for certain types of possible deviations. Section 3504, upon which he relies, is couched in terms of procedure, not as a substantive enlargement of the scope of section 2518(10) (a). We turn, therefore, to a consideration of whether the present objections fall within section 2518(10)(a), rather than under a broader construction of section 2515 if standing alone.

The Will Wilson defect, so called, if a violation at all, is a purely statutory violation and therefore is not within subsection (i). As to subsection (ii), section 2518(4) (d) requires that the order state the identity of the person authorizing the application for the surveillance. The order in the present case stated as follows.

“Special Agents of the Federal Bureau of Investigation . . . are authorized, pursuant to application authorized by the Assistant Attorney General for the Criminal Division of the Department of Justice, the Honorable Will Wilson, who has been specially designated by the Attorney General of the United States, the Honorable John N. Mitchell, to exercise the powers conferred on him by Section 2516 of Title 18, United States Code, to [carry out the surveillance].”

This statement is facially in compliance with the statute; only by an evidentiary proceeding could it be determined that Will Wilson was not so specially designated, or that he did not in fact authorize the application. Although it has been said that such defects make the order insufficient on its face, e. g., United States v. Foearile, D.Md., 1972, 340 F.Supp. 1033, 1058-1060, aff'd sub nom. Giordano v. United States, ante, identification of the authorizing person is no different from any other statement required on the face of the order, and if the underlying truth of that statement is allowed to be contested as a defect on the face of the order, this is a definition of “insufficient on its face” that we could not accept.

We find no facial defect on the present order, and while we recognize that a number of courts have gone beyond this restriction, we view the matter otherwise. Since, on rigorous questioning, appellant’s counsel disclaimed any other defense to the order to testify, the order of contempt is affirmed. Mandate forthwith.

COFFIN, Chief Judge, dubitante.

While I cannot, with conviction, fault the court’s reasoning, neither can I say that it rests comfortably with the clear indication that Congress was deeply interested in requiring strict accountability of the Attorney General for such technological invasions of privacy as he may deem necessary. Bearing in mind that any insulation afforded by a court order against attacks for defective internal processing applies under § 2518 (10) (a) to trials as well as grand jury proceedings, I am concerned that authorizations made with little or no attempt to comply with the statute may go unchallenged, leaving only the uncertain sanctions of civil damages and criminal penalties. The objectives of privacy, accountability, and uniformity would see— in jeopardy.

It would seem to me there is an approach which is both workable and more faithful to the statute. The government has, under § 3504, the obligation, on request, to “affirm or deny the occurrence of the alleged unlawful act”. See Gelbard v. United States, 408 U.S. 41, 52-55, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). I see no reason why the government’s obligation under this section should not include revealing any known defects of internal processing whether or not the government deems them legally significant My rationale is that an order stemming from a complete absence of decision by the official charged with that responsibility should be vulnerable to attack. But the attack would not probe the truth or falsity of the government’s representation. It would be the province of the court to adjudge whether the defect was substantial or not. Should the court view the defect as serious, it could invalidate the order; should the defect be found de minimis, the order would be enforced. Such a procedure, while protecting important interests, would not further delay grand jury proceedings.

Accordingly, I would have preferred to remand this matter to the district court for findings as to the precise nature of the “Will Wilson” defect in this case. We could then have determined whether, if error had been committed, it was harmless or substantial. If harmless, we would not have had to interpret the scope of § 2518(10) (a), leaving this to the Supreme Court. If substantial, we would have had to face the statutory interpretation question but could have adopted a less confining view. In any event, the chances of incarcerating a witness prematurely would have been minimized.

      . On the basis of this concession the court seemingly found that the interception order was not in fact properly authorized by the Attorney General or an Assistant Attorney General as provided in 18 U.S.C. § 2516(1), but ruled that this was irrelevant. Since we agree as to the irrelevancy, we do not pursue the warrantability of the finding. (Not every Will Wilson situation is, in fact, defective. Cf. United States v. Pisacano, 2 Cir., 1972, 459 F.2d 259, 263.) At the same time, we note, for what it is worth, that our reason for this ruling is not the one advanced by the government.

      . See, e. g., Gelbard v. United States, ante, 408 U.S. at 61 n. 22, 92 S.Ct. 2357, ii. at 70, 92 S.Ct. 2357 (Justice White, concurring) .

      . For example, 408 U.S. at 61 n. 21, 92 S.Ct. at 2368. “This provision [§ 2518(10) (a)] must be read in connection with sections 2515 and 2517 . . . which it limits. It provides the remedy for the right created by section 2515”, quoting S.Rep.No.1097, 90th Cong., 2d Sess., at 106.

      . Note, in addition to the legislative history detailed in Gelbard, the clauses in the two sections, ante, that we have italicized.

      . If the word “unlawfully” in subsection (i) were to read to include violations of the act, the remaining clauses would be surplusage, since the interception would be “unlawful” under the statute if either condition (ii) or (iii) were present. Cf. Jarecki v. G. D. Searle & Co., 1961, 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859. We therefore interpret this clause, in conjunction with the second and third clauses, to mean unlawful other than under the instant statute. Cf. United States v. Liddy, D.D.C., 1973, 354 F.Supp. 217, 219 n. 1.


text:
    UNITED STATES of America, Appellee, v. Frank CANGIANO et al., Appellants.
    Nos. 1125, 1146 thru 1149, Dockets 71-2104 thru 71-2109.
    United States Court of Appeals, Second Circuit.
    Submitted Aug. 30, 1973.
    Decided Dec. 27, 1973.
    See also, 2 Cir., 491 F.2d 906.
    Henry J. Boitel, New York City, for appellants Frank Cangiano and Cosmo Cangiano.
    Joseph L. Belvedere, Brooklyn, N. Y., for appellant Dominick Ariale.
    Philip Brown, Brooklyn, N. Y., for appellants Thomas Gambardella and Anthony DeRamo.
    Robert A. Morse, U. S. Atty., L. Kevin Sheridan and James A. Pascarella, Asst. U. S. Attys., Brooklyn, N. Y., for appellee.
    Before FRIENDLY and TIMBERS, Circuit Judges, and JAMESON, District Judge.

       Senior District Judge of the District of Montana, sitting by designation.

   PER CURIAM:

The Supreme Court, in a per curiam order entered June 25, 1973, 413 U.S. 913, remanded the above case to us for further consideration in light of Miller v. California, 413 U.S. 15 (1973), and other cases decided the same day. The instant case now before us for reconsideration on remand is among some 60 cases similarly remanded on June 25, 1973 for further consideration in light of the Miller series of opinions. See United States v. Thevis, 484 F.2d 1149, 1154 (5 Cir. 1973).

In our previous opinion of June 26, 1972, 464 F.2d 320, we affirmed the convictions of the five above named appellants entered after a twelve day jury trial in the Eastern District of New York before Chief Judge Jacob Mishler finding them guilty of transporting obscene materials in interstate commerce for the purpose of sale, and conspiring to do so, in violation of 18 U.S.C. §§ 1465 and 371 (1970). The principal contentions raised by appellants on their appeals, and ruled upon by us, related to the legality of various searches and seizures conducted by the FBI in gathering evidence against appellants. We held, as did the district court after a lengthy pretrial suppression hearing, that appellants’ Fourth Amendment rights had not been violated.

Immediately upon learning of the Supreme Court’s remand order of June 25, 1973, we entered an order on June 29, 1973 directing the parties to file supplemental briefs. They did. We have carefully re-examined the entire record in light of these briefs and in light of the decisions of the Supreme Court set forth in its remand order herein. Supra note 1. We have concluded, after further consideration as ordered by the Supreme Court, that we should adhere to our previous decision of June 26, 1972. We therefore affirm the convictions of each of the appellants.

Since appellants were convicted after a fair trial on the basis of overwhelming evidence of crimes committed more than five years ago, we order that the mandate issue forthwith.

Affirmed.

      . The Supreme Court’s per curiam order of June 25, 1973, remanding the instant case and others, reads as follows :
      “Certiorari granted, judgments vacated, and cases remanded to the respective United States Courts of Appeals for further consideration in light of Miller v. California, [413 U.S. 15 (1973) ] ; Paris Adult Theatre I v. Slaton, [413 U.S. 49 (1973) ] ; Kaplan v. California, [413 U.S. 115 (1973)]; United States v. 12 200-ft. Reels Film, [413 U.S. 123 (1973)]; United States v. Orito, [413 U.S. 139 (1973) ] ; Heller v. New York, [413 U.S. 483 (1973)] ; Roaden v. Kentucky, [413 U.S. 496 (1973)] ; and Alexander v. Virginia, [413 U.S. 836 (1973)].”


author: MULLIGAN, Circuit Judge: OAKES, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Cosmo “Gus” CANGIANO and Elana Marie Isola, Appellants.
    Nos. 1120, 1121, Dockets 73-1360, 73-1449.
    United. States Court of Appeals, Second Circuit.
    Argued Aug. 17, 1973.
    Decided Jan. 11, 1974.

      William M. Piatt, Atty., Dept of Justice, Washington, D. C. (Robert A. Morse, U. S. Atty., Eastern District of New York, Robert L. Keuch, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.
    Henry J. Boitel, New York City (Martin N. Gamliel, New York City, of counsel), for appellant Cangiano.
    Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City), for appellant Isola.
    Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

On June 30, 1971, a two-count indictment was filed in the Eastern District of New York, naming Cosmo Cangiano, Elana Marie Isola, Anthony Palumbo and Anthony C. Mascola as defendants. The first count charged the defendants with conspiracy “to transport in interstate commerce for the purpose of sale and distribution obscene, lewd, lascivious and filthy motion picture films, pictures, books and pamphlets” in violation of 18 U.S.C. §§ 371 & 1465. The second count charged Cangiano, Palumbo and Isola with the substantive crime of transporting from Staten Island, New York to New Jersey, some “ninety reels of obscene, lewd, lascivious and filthy eight-millimeter motion picture films, for the purpose of sale and distribution therein,” in violation of 18 U.S.C. § 1465. The indictment was tried before Hon. Jacob Mishler, Chief Judge, Eastern District of New York, and a jury. The charge against Mascola was dismissed on the motion of the Government. On October 27, 1972, the jury returned a guilty verdict on both counts against Cangiano, Isola and Palumbo. Cangiano was sentenced to three years imprisonment on each of the two counts and a $10,000 fine. Each of the sentences was to run concurrently, but was to be consecutive to a five-year term previously imposed for a similar offense. The fine imposed here was also in addition to a $30,000 fine levied in the prior case (Cangiano I). Isola was sentenced to three years on each count, sentences to run concurrently. Palumbo received suspended sentences on both counts and was placed on probation for three years. These appeals by Cangiano and Isola ensued.

I. SPEEDY DISPOSITION

Appellants Isola and Cangiano, on the appeal, urge that they were not given speedy trials in accordance with the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (28 U.S.C. App. (Supp.1973)). The appellants were arrested on November 12, 1969, indicted on June 30, 1971 and arraigned on July 22, 1971, but the Government’s notice of readiness was not filed until September 28, 1971 (twenty-two months after arrest), and the trial was not commenced until October 18, 1972. Although this case began before the promulgation and effective date of our Rules (Jan. 5, 1971 and July 5, 1971 respectively), the appellants argue that the permissible time period within which the Government must have been ready for trial was six months from the date of arrest. Rule 4; United States v. Scafo, 480 F.2d 1312, 1316-1317 (2d Cir.), cert. denied, 414 U.S. 1012, 94 S.Ct. 378, 38 L.Ed:2d 250 (1973).

Before we can sensibly talk about the possible expiration of the six-month period, initial reference must be made to the periods excluded by Rule 5. United States v. Lasker, 481 F.2d 229, 233 (2d Cir. 1973). Rule 5(a) excludes “[t]he period of delay while proceedings concerning the defendant are pending, including but not limited to pretrial motions . . . trial of other charges, and the- period during which such matters are sub judice.” The Government is not required to make any motion before the six-month period has elapsed in order to take advantage of this provision. Cf. United States v. Rollins, 475 F.2d 1108 (2d Cir. 1973).

Cangiano was arrested on February 6, 1969, on similar charges involving the sale of obscene material and the indictment in that case (Cangiano I) was filed on April 30, 1969. The trial there did not begin until October 18, 1971, which was three weeks after the notice of readiness was filed in the present case. Thus, since Cangiano I was pending during the entire period from the arrest of Cangiano here, on November 12, 1969, to the filing of the notice of readiness, on September 28, 1971, the period is excluded under Rule 5(a), and, as to Cangiano, there was no violation of the six-month rule.

With respect to Isola, Rule 5(e) provides that we exclude from the six-month period “[a] reasonable period of delay when the defendant is joined for trial with a eodefendant as to whom the time for trial has not run and there is good cause for not granting a severance.” Since Cangiano’s time for trial had not run, Rule 5(e) would again exclude the same period and no violation of our Rules would occur providing the period of delay was reasonable and there was good cause for not granting a severance.

On May 22, 1972, when the defendants Cangiano and Isola moved to dismiss the indictment under Rule 4, no motion for a severance was made by Isola. Judge Mishler denied the motions, finding that no prejudice was established by Cangiano (Isola claimed none), and he further indicated that he had been waiting for this court to determine the appeal of Cangiano I, since “that decision might very well be dispositive of some of the questions in this case and maybe the entire case . . . .” United States v. Lasker, supra, 481 F.2d at 234, makes it clear that in a 5(e) case it is unrealistic to expect the Government to take the initiative to move for a severance. Here, Isola made no effort to obtain one, and Judge Mishler, in effect, found no unreasonable period of delay, since there was no prejudice and since the appeal in Cangiano I, not decided until June 26, 1972 (464 F.2d 320 (2d Cir.)), might well have disposed of the case.

There was here no violation of the Prompt Disposition Rules and there is no basis for dismissing the indictment, particularly since no prejudice is attributed to the delay encountered. United States v. Pierro, 478 F.2d 386, 389 (2d Cir. 1973).

II. SPECIFIC INTENT

Where the crime charged is conspiracy, a conviction cannot be sustained unless the Government establishes beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute. That has been the position of this Circuit, at least since Learned Hand’s opinion in United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), and the principle has been reaffirmed by this Court’s recent decisions. E. g., United States v. Houle, 490 F.2d 167, 170, 172 (1973); United States v. De Marco, 488 F.2d 828, 832 (1973); United States v. Alsondo, 486 F.2d 1339, 1341 (1973); United States v. Jacobs, 475 F.2d 270, 282, cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 and Thaler v. U. S., 414 U.S. 821, 94 S.Ct. 131, 38 L.Ed.2d 53 (1973); United States v. Fields, 466 F.2d 119, 121 (1972); United States v. Vilhotti, 452 F.2d 1186, 1189 (1971), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972).

Applying the principle here, since the defendants were charged with a conspiracy to transport obscene matter in interstate commerce, the court should have instructed the jury that the defendants could be found guilty on that count only if their intent had been to transport the goods across state lines. The trial court charged on this point as follows:

The government must prove beyond a reasonable doubt that the defendant entered into the conspiracy charged knowing that it was formed to transport obscene, lewd, lascivious and filthy material in interstate commerce and for the purpose of sale and distribution.
The government must prove beyond a reasonable doubt that the accused knew or could reasonably foresee that the business would use interstate facilities.
It’s not necessary for the government to prove that the parties discussed interstate facilities or the distribution through interstate facilities.
If the government, through the evidence—-if you have concluded that the business of the conspiracy normally would have contemplated at least for a substantial part of its business the use of interstate facilities, then the element is satisfied.

Counsel for both appellants objected to the inclusion of the language that the defendants either “knew or could reasonably foresee” that the goods were to be transported in interstate commerce. Where a crime requires a general intent or where a plaintiff seeks to recover damages in tort, the principle that a person intends the reasonable and probable consequences of his actions has validity. We agree, however, that where a specific intent is required, as in an attempt or conspiracy count, the proper charge requires that the element of actual knowledge be found by the jury. See United States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff’d, 311 U.S. 205, 60 S.Ct. 1075, 84 L.Ed. 1393 (1940) ; United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938). See also United States v. Lusterino, 450 F.2d 572, 574 n. 1 (2d Cir. 1971); United States v. Barash, 365 F.2d 395, 402-403 (2d Cir. 1966).

A departure from this rule is found in the dictum of this Court in United States v. Barone, 467 F.2d 247 (2d Cir. 1972), which involved a conviction for transmitting wagering information in interstate commerce:

The appellants and the Government both assume, and we agree, that a conviction of conspiracy to violate 18 U.S.C. § 1084 requires a showing that the defendant knew or could reasonably foresee that interstate communication would be used in furtherance of the plan of action.

467 F.2d at 249. It is significant that in reversing the conviction of the defendant DiBuono in that case, the court further stated;

In the present case there was no showing that DiBuono knew that interstate telephone calls would be made.

467 F.2d at 249. (emphasis in original). Thus, although the language was overbroad and the appellant made no issue of it, but rather assumed its correctness, we consider it dicta since the court placed its reversal squarely on his actual lack of knowledge and did not at all advert to whether DiBuono could have reasonably foreseen that interstate communication would be employed.

While the charge here was erroneous, it by no means follows that reversible error was committed. There is a technical difference between defendants who know that the material they were transporting was actually going to cross state lines and those who “could reasonably foresee” that this was about to occur, but the distinction has no significance in the factual setting presented. The defendants here, if they were engaged in any conspiracy at all, had to actually know that interstate commerce was involved. The exhibits introduced on the trial included an address book taken from Cangiano’s apartment, and notebooks taken from a pot in the stove of Isola’s apartment. These records, which were in Isola’s custody and which the jury asked to have sent into the jury room during their deliberations, not only identified the materials sold (playing cards, films, books and magazines) and the amounts paid, but also identified the customers and their addresses as well. Where actual out-of-town addresses do not appear, the primitive code employed is quite obvious. Thus, we find buyers identified as Bob Hoboken, Danny Trenton, Steve Pittsberg [sic], Dickie Boston and Charlie Springfield, to name just a few. The telephone number for each customer reveals an area code corresponding to the city of his last name. This is not a case in which the defendants would just have reason to believe that interstate transportation was foreseeable; this was the precise business they were engaged in. This is not a case in which the interstate jurisdictional basis depends upon an isolated phone call or a casual trip across state lines. An examination of the records made available to the jury discloses a huge volume of sales of pornographic materials totalling hundreds of thousands of dollars to customers identified as living in Massachusetts, Connecticut, Rhode Island, New Jersey, Pennsylvania, Maryland, Georgia, Nevada, California, Michigan and Ohio. Neither Cangiano, who was the principal figure in the conspiracy, nor Isola, who had custody of the bulk of the records of the business, could have been unaware of the destination of the obscene material. If she was engaged at all in the business, it is incredible that she was unaware of its interstate dimensions. Cangiano was observed in her apartment on several occasions. It was a meeting place and one of several storage places for the obscene material. She was seen loading and unloading her ear with cartons, not only at her home, but at 1741 Victory Boulevard, which was also utilized as a headquarters for the group. Cangiano was observed carrying cartons to and from her apartment. Isola was further seen transporting cartons from 307 Gordon Avenue, the principal warehouse used by the group, to Victory Boulevard, where she in turn picked up other packages and brought them back to her apartment.

The evidence of Isola’s active involvement is indeed overwhelming and in fact no claim of insufficiency is made on appeal. In view of her obvious familiarity with the business and the identity of its clientele, we cannot characterize the court’s charge on intent to be reversible error. See Stone v. United States, 435 F.2d 1402, 1406 (2d Cir. 1970); United States v. Corallo, 413 F.2d 1306, 1326-1327 (2d Cir. 1969).

III. THE SEARCH WARRANTS

Appellants argue that the search warrants, pursuant to which obscene matter was seized at 769 Forest Avenue (Isola’s apartment), 307 Gordon Street (a storage facility not occupied by any of the defendants) and 1741 Victory Boulevard (presumably the office of the Helena Pillow Company), were invalid. Having been advised by a reliable informant that Cangiano had moved part, of his pornography operation from Brooklyn (see Cangiano I, 464 F.2d 320 (2d Cir. 1972)) to Staten Island, FBI agents commenced a four-month surveillance which included the three named locations. The informant further notified the FBI that Cangiano was storing large quantities of pornographic materials in the Forest Avenue apartment and in cars parked in the vicinity, including one registered in Isola’s name, as well as his own. Another informant advised that Cangiano was similarly using a basement at Gordon Street for storage of the pornographic material. The Victory Boulevard location was described as the sales office of the business. One of the informants gave the agents four film reels, one deck of playing cards and six magazines called “Wife Swapping,” all of which were obtained from Cangiano and all of which described or depicted men and women engaged in natural and unnatural sex acts.

On November 11, 1969, a sales transaction was observed at the Victory Boulevard address involving a man (Miele), who was driving a car with an out-of-state license. He was followed by agents into New Jersey where he was arrested and his ear searched. It was found to contain a carton of 100 eight mm. “stag films” which Miele admitted he had purchased from Cangiano. One was then screened for a United States Commissioner, and the agent in charge of the investigation further provided him, in affidavit form, with the information received from the informants, as well as the results of the surveillance.

Warrants were issued on November 12th to search the three locations described on Forest Avenue, Gordon Street and Victory Boulevard. The three warrants directed the agents to seize:

a quantity of playing cards, films, and magazines and books, depicting obscene and lascivious pictures, constituting hard core pornographic material, which pictures portray men and women in the natural and unnatural sexual acts and which playing cards, films, magazines and books are being used to conduct a business of transporting, selling and distributing obscene, lewd and hard core pornographic pictures in interstate commerce which are in violation of Title 18, United States Code, Section 1465 and 2.

On that day, the search of Forest Avenue and Gordon Street yielded vast quantities of pornographic materials, as well as the business records of the defendants. Isola’s car was searched pursuant to a New York City warrant and yielded four hundred reels of pornographic films. All of the obscene material was admitted into evidence and seven films were screened for the jury.

Judge Mishler ruled below that neither Cangiano nor Isola had standing to contest the seizure at Gordon Street since neither had a possessory interest in the premises. Cangiano’s claim that he was the “target of the search” and thus had standing is of doubtful validity. United States v. Mapp, 476 F.2d 67, 71 (2d Cir. 1973). However, we need not rule on the question since we find no taint in the searches. It is conceded, moreover, that Isola has standing to contest the search of her Forest Avenue apartment.

The appellants urge that the application for the search warrants was defective since it failed to establish the interstate nature of the crimes charged, and therefore failed to establish a federal crime. The proper standard to be employed, of course, is whether or not the Commissioner had “probable cause” to issue a warrant on the basis of the affidavit submitted in its support. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Here there was sufficient reason alleged to support a probable cause to believe that interstate commerce was involved. A reliable informant indicated that Cangiano, who had been previously indicted for the interstate transportation of obscene material, had moved his business to Staten Island; the Miele arrest in New Jersey and his admission of the purchase of “stag films” from Cangiano, were recited in the affidavit; the loading of a U-haul van with Indiana plates at Victory Boulevard and Gordon Street, was also recited. These facts provided probable cause to suspect that a federal crime was in progress.

Appellants further urge that since “massive” seizures were involved, the defendants were entitled to a prior adversary hearing. The cases relied upon by the appellants are not at all in point. While the seizures may well be described as “massive”, there is no semblance here of any violation of First Amendment rights which was apparent in such cases as A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), in which there were massive seizures of books from commercial bookstores for the purpose of destroying the books as contraband, or Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968) (per curiam), in which there was a seizure of film from a commercial theatre regularly open to the public without any prior judicial scrutiny. As Chief Justice Burger observed in Roaden v. Kentucky, 413 U.S. 496, 500, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757 (1973) :

The common thread of Marcus, Quantity of Books, and Lee Art Theatre is to be found in the nature of the materials seized and the setting in which they were taken. ... In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition. Seizing a film, then being exhibited to the general public, presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitous action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. The setting of the bookstore or the commercial theatre, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression.

The defendants here were not operating either a bookstore or a motion picture theatre with the public invited to purchase material or to view screenings. This was strictly an underground operation in hard core pornography with clandestine storage facilities not intended to be available to the public, but only to its trusted customers. The “setting” then is hardly such as to presumptively invoke First Amendment protection. Moreover, the fact is that there was one complete screening of a film for the Commissioner. To require that samples of all the films be screened finds no support in precedent or logic. The defendants were dealing commercially in large scale fungible smut. On the basis of the screening plus the affidavit reciting the information made available, as well as the surveillance, the officers were directed to seize specifically “playing cards, films, and magazines and books” which portrayed “men and women in the natural and unnatural sexual acts.” The language was not conclusory nor did it simply track the language of the statute. Rather, it followed in haec verba the language suggested by Judge Smith as appropriate in United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971).

While appellants now suggest a “prior adversary” hearing as a constitutional requisite, they in fact never sought pretrial return of the materials, nor did they urge that the seizures prevented exhibition to the public by use of other copies. See Heller v. New York, 413 U.S. 483, 484, 93 S.Ct. 2789, 2791-2792, 37 L.Ed.2d 745 (1973). On trial the defendants were willing to stipulate that the materials seized were obscene. Moreover, as emphasized in Heller v. New York, supra, 413 U.S. at 491, 93 S.Ct. at 2794 n. 7 & 2795 (1973), the seizures here were not made for the purpose of destruction nor for the purpose of blocking the public from viewing commercial films or reading or purchasing books openly displayed, but rather to preserve evidence for a criminal prosecution. See also Cangiano I, 464 F.2d 320, 327-329 (2d Cir. 1972).

In sum, we find that the warrants here were issued on reasonable cause to believe that a federal crime was committed, and that the seizure of the materials thereunder violated no First or Fourth Amendment rights.

IV. COMMUNITY STANDARDS

It is urged that the charge was erroneous in failing to adequately define the “community” by whose standards the obscene nature of the materials was to be determined, and that this error requires reversal. Judge Mishler instructed the jury with respect to community standards in substantially the same language he had employed in Cangiano I. That case was remanded to this court for further consideration following the Supreme Court's recent opinions on obscenity (see note 1, supra), and on remand, that portion of the charge was challenged on essentially the same ground urged here. See Brief for Dominick Ariale at 5. The panel, on considering all of the arguments raised on remand, adhered to its earlier affirmance. 491 F.2d 905, 2 Cir., (1973) (per curiam). Moreover, the obscene nature of the materials involved here has never been contested below or on appeal. Our own review of the evidence discloses that it is so patently offensive that it would be obscene in any community including its zoological gardens.

Having considered all of appellants’ arguments, we affirm the convictions below.

OAKES, Circuit Judge

(dissenting):

I dissent.

I agree with Parts I, II and III of the majority opinion in this case. I disagree, however, with Part IV relating to “community standards.”

Chief Judge Mishler’s instructions to the jury failed to define by what community standards the alleged obscenity in this case was to be judged—regional, statewide, districtwide, citywide, boroughwide or neighborhoodwide—and all of these alternatives are open. Rather, the instructions referred to the “community as a whole”—what community he did not say. At the time of trial most people thought, and objection to the charge was made on this basis, that the national community established the controlling standard. See Jacobellis v. Ohio, 378 U.S. 184, 193, 84 S.Ct. 1676, 12 L.Ed. 793 (1964). The Supreme Court has now made it tolerably clear that, indeed, the test of obscenity is to be determined by the standards of the community of the triers-of-fact, Miller v. California, 413 U.S. 15, 30-34, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), so that Chief Judge Mishler cannot be faulted in this respect; indeed, he may have anticipated the Miller case by refusing to charge national standards. The Supreme Court has not yet told us, however, what is meant by the community of the triers-of-fact or if this is some objective test relating to the views of others in their community or some subjective test relating to their state of mind.

Regardless of our being left somewhat in the dark by the Supreme Court, regardless of what we appellate judges may think of the nature of the materials the transportation of which in interstate commerce is charged as illegal—and for this purpose one may assume indeed in Judge Mulligan’s typically amusing phrase that even a community’s “zoological gardens” would treat the material here in question to be “obscene, lewd, lascivious and filthy” under the words of the statutes—a defendant is entitled to a determination of guilt or innocence by a jury under proper instructions by the court. United States v. Fields, 466 F.2d 119 (2d Cir. 1972). See also Bollenbach v. United States, 326 U.S. 607, 613-614, 66 S.Ct. 402, 90 L.Ed. 350 (1946); Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Clark, 475 F.2d 240, 248-251 (2d Cir. 1973). This, indeed, is what a jury trial is all about. Even contemptible purveyors of “hardcore” pornography are entitled to proper instructions by the court when being tried for a criminal offense by a jury. Moreover, tomorrow it may be someone else who is being tried for the same offense. And that someone may be a theater (or a bookstore), a producer or director, even an artist.

We are in an area where freedom of expression and its converse, freedom of consumption of thought or what I would call freedom of reception, is ultimately involved. It is unfortunate that principles sometimes have to be established in cases involving those who would abuse these or other basic freedoms including those who would purvey so-called hardcore pornography to a willing, if—at least among the denizens of the older generation—an overly prurient, public. But we must be very careful lest the principles established in cases such as this one be permitted to make substantial encroachment upon freedom of expression or, as I say, its converse, freedom of reception. Only the other day the Supreme Court granted certiorari in Jenkins v. Georgia, 414 U.S. 1090, 94 S.Ct. 719, 38 L.Ed.2d 547 (1973), where a local community—in that case, a town— determined the movie “Carnal Knowledge” to be obscene. There is here so much at stake that it seems to me we must be very careful and very precise, now that a majority of the Supreme Court has taken the position that non-national standards may govern, to require definition of just what local standards the law is referring to, lest tomorrow an Ingmar Bergman, a Stanley Kubrick or a Francois Truffaut be considered, by judicial fiat, to have produced something which according to a group of appellate judges even the residents of the “zoological gardens” would find obscene.

I would reverse and remand for a new trial with instructions to the jury to be framed under whatever law the Higher Court has at the time of retrial last established.

      . The prior conviction in Cangiano I was affirmed by a panel of this Court. United States v. Cangiano, 2 Cir., 464 F.2d 320 (1972). The Supreme Court vacated the judgment and remanded for further consideration in light of its recent opinions on obscenity. 413 U.S. 913, 93 S.Ct. 3047, 37 L.Ed.2d 1023 (1973). On reconsideration the panel adhered to its earlier affirmance. 491 F.2d 905, 2 Cir., (1973) (per curiam).

      . These Rules have been superseded by prompt disposition plans promulgated by the various district courts within this Circuit, and approved by the Judicial Council. These plans became effective April 1, 1973.

      . We have reviewed the appellate briefs in Cangiano I (464 F.2d 320 (2d Cir. 1972)) and note that no speedy trial issue was raised.

      . Some of us may think of that nature as dangerous, even to adults, some as debasing or corruptive, some as ludicrous. In the light of what Professor Emerson has called “a serious lack of evidence as to what the effects of obscenity, if any, actually are,” The System of Freedom of Expression 467, 498 (1969), to some of us it may appear pathetic that the mores of Queen Victoria prevailed for so long that people today actually pay good money to examine the schlock the appellants were convicted of transporting or conspiring to transport. As in prohibition, however, an artificial market for such trash has been created. One would hope that another generation—less imbued with the fantasies symbiotically related to the suppression of the past—will be less ready to buy this shoddy stuff. One must be careful, too, when one makes judgments in this area to remember that “the hard-core pornography test, like the Both test, [is] a way of allowing high-elass, elegantly packaged pornography, while denying pornography to the less affluent, educated or supposedly intelligent.” See Emerson, supra at 492.

      . One cannot help but note, in passing, that in a true state of nature—zoological or otherwise—obscenity would not exist; it is, as the philosopher Berkeley would have said, only because it is perceived in the eye of the viewer.