author: GROOMS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ruben Hernandez JIMENEZ, Defendant-Appellant.
    No. 73-3282.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    John T. Neal, Houston, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Alvin A. Horne, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

This is an appeal in forma pauperis by Ruben Hernandez Jimenez, who stands convicted on Counts One through Five, respectively, of (1) conspiring to distribute heroin, (2) possession with intent to distribute heroin, (3) distribution of heroin, (4) unlawfully carrying a firearm during the commission of the offense of conspiracy to distribute heroin, and (5) unlawfully carrying a firearm during the commission of the offense of possession with intent to distribute heroin.

Also charged in the same indictment were appellant’s brother Manuel, Thomas Rizo, Jesse, Jose, Freddie and Lorenzo Cevallos. Manuel, Jesse and Lorenzo entered pleas of guilty as to Count One. The indictment was dismissed as to Jose, Freddie and Lorenzo.

The principal facts and circumstances upon which appellant’s conviction was predicated may be briefly summarized as follows:

Thomas Rizo had become acquainted with Frank De Carlo, an undercover agent of the Bureau of Narcotics and Dangerous Drugs, and in mid-September 1972, called him and began negotiations for the sale of five pounds of heroin at $650 per ounce. Jesse Cevallos, appellant’s cousin, was a party to the negotiations. During the following thirty days there were numerous conversations between De Carlo and Jesse and in one on October 16th Jesse told De Carlo that he had two cousins arriving in town. The name “Manuel” was mentioned. In that call it was agreed that the price would be increased to $700 per ounce. Approximately an hour later Jesse again called De Carlo and informed him that the price had been raised to $750 per ounce. He explained that Manuel and “Ruben” had disagreed as to the price, and that the increase was due to De Carlo’s insistence on delivery in Houston rather than in Dallas. The next day Jesse and Rizo gave De Carlo a sample of heroin and the sale was agreed to with delivery to be made on the 18th. On that date Rizo and Jesse made arrangements with De Carlo for delivery at the Holiday Inn, near the Houston airport. During the afternoon Rizo and Jesse arrived at the Inn, parked and went into the motel. About ten minutes later Lorenzo and Jose arrived in an Olds. Manuel, accompanied by Freddie and appellant, followed them in a Mercury. Leaving Manuel and appellant near the Olds Freddie entered the motel where arrangements were made to accept delivery of the heroin. Jesse and Freddie returned to the parking lot and joined appellant and those with him. The six then went to the Mercury. Manuel opened its trunk and removed a blue suitcase containing the heroin. All six men then proceeded to the entrance of the motel. Jesse and Manuel joined De Carlo and Rizo in the lobby, went with them to Room 452 and completed the transaction. Appellant and the others went to the lounge where they were arrested following the arrest of Manuel, Jesse and Lorenzo. Both appellant and Manuel were armed with revolvers.

When the Mercury was searched a small travel suitcase was found in the trunk. It contained several photographs and letters and was claimed by a woman named Connie Perez, who was identified as appellant’s girl friend.

Appellant claims that there was: (1) insufficient evidence to sustain his conviction on any of the counts; (2) error of the court in not instructing the jury, sua sponte on hearsay testimony linking him with the conspiracy; (3) use of prejudicial testimony of no probative value; and (4) illegal use of evidence that he possessed a gun.

The rules governing the sufficiency of the evidence, direct and circumstantial, to support a verdict of guilty, and when we will reverse, are well crystallized, and will be only briefly repeated.

In United States v. Warner, 441 F.2d 821 (5 Cir.), cert. den. 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58, we held that on a motion for a judgment of acquittal the test is

“whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir. 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir. 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir. 1967, 374 F.2d 878, 881.”

We further held that the test as to sufficiency should. apply whether the evidence is direct or circumstantial; that

“[I]n criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405.”

that the matter of defendant’s guilt is for the jury unless we conclude that the jury must necessarily have had a reasonable doubt; and that

“[W]e must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence must be resolved in favor of the jury verdict. Gordon v. United States, 5 Cir. 1971, 438 F.2d 858; United States v. Francisco, 8 Cir. 1969, 410 F.2d 1283, 1288.”

We also held that “slight evidence” is all that is required to connect a particular defendant with a conspiracy once the agreement or common scheme of conspiracy is shown.

We recently (United States v. Martinez, 486 F.2d 15 (5 Cir. 1973)) restated the rule announced in Panci v. United States, 256 F.2d 308 (5 Cir.), that mere association, without more, does not suffice to demonstrate knowledge of a conspiracy.

The evidence clearly establishes a conspiracy and we are persuaded that under the applicable standards was sufficient to connect appellant with it.

Appellant rode armed in the load car to the designated area of delivery, stationed himself close to the car while final negotiations for delivery were underway in the nearby motel, witnessed his brother remove the suitcase containing the contraband from the trunk of the car after two of the participants had returned from the motel, and, with the others present at that point, accompanied his brother as he carried the suitcase to the entrance of the motel. From those coordinative activities the jury could have reasonably inferred that appellant acted as an armed guard with the duty of securing the safe delivery of $60,000.00 worth of heroin. That evidence concededly was circumstantial. A conspiracy, however, by its very nature is veiled in secrecy, and its existence is rarely established by direct proof, but “must rest upon inferences drawn from relevant and competent circumstantial evidence — ordinarily, the acts and conduct of the conspirators themselves.” United States v. Warner, supra. Nevertheless, the case against appellant on the conspiracy count was not entirely circumstantial. According to De Carlo, Jesse Cevallos, one of,the principal conspirators, informed him on the sixteenth of October that he had two cousins arriving in town and mentioned the name “Manuel,” and in a second discussion an hour later, respecting an increase in the price to be paid for the heroin, further informed him that Manuel and a man named “Ruben” had had a disagreement as to the price. Jesse had two cousins who arrived in town, and their names were Manuel and Ruben.

There were also mysterious movements of the parties that could hardly be attributed to mere coincidence and that lacked reasonable explanation. As an example, Jesse testified that on the morning of the eighteenth he dropped Manuel off at the La Cue Club pool hall on Lawndale and that he did not know that Ruben and his brothers, Jose, Freddie and Lorenzo, were there at the time. No reason was given for leaving Manuel at the pool hall. Both Manuel and Ruben testified that before their meeting there neither had known that the other was in Houston.

Upon all the evidence the jury concluded by its verdict that appellant was guilty beyond a reasonable doubt on all the counts submitted to it. Reasonable minds could well conclude that the evidence was consistent with guilt and inconsistent with the hypothesis of appellant’s innocence. Viewing all the evidence in the light most favorable to the Government, we are not disposed to disturb the jury’s verdict as to any of the counts on the ground of the insufficiency of the evidence.

Appellant asserts error as to the testimony of De Carlo when he stated that Jesse told him in one conversation that he had two cousins coming to town and in another that Jesse mentioned the name “Ruben.” Appellant charges that this is the only testimony linking him to the conspiracy.

Once independent evidence is received establishing a conspiracy and defendant’s connection with it, out-of-court statements by co-conspirators during its furtherance are admissible against him. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; United States v. Nall, 437 F.2d 1177 (5 Cir.).

In this case no objection was made when the hearsay testimony was offered and no instruction was requested concerning it. Appellee contends that hearsay testimony admitted without objection is entitled to full probative effect generally, and not limited to conspiracy alone, as if it were otherwise admissible. In United States v. Shiver, 414 F.2d 461 (5 Cir.), a case not involving a conspiracy, we held that such evidence admitted without objection “is to be given its natural probative effect as if it were in law admissible.”

Appellant charges that as to the testimony last referred to the court erred in failing sua sponte to give a cautionary charge on the limited use of hearsay testimony at the time it was admitted.

The order of the admission of proof in a conspiracy case is within the discretion of the trial court, and testimony concerning out-of-court statements of co-conspirators may be admitted before the existence of the conspiracy is established by independent evidence. The following of such procedure may present hazards. United States v. Apollo, 476 F.2d 156 (5 Cir.). But where, as here, there was no objection to the omission, and the issue was fully covered in the court’s oral charge to the jury, appellant’s claim of error is without merit.

Appellant claims that the court erred in permitting the prosecution to read in evidence the last paragraph of the five-page statement prepared by De Carlo for the Government, dated October 25,1972, and reading:

“I have read this statement consisting of five pages and signed it. This statement is true and correct to the best of my knowledge. No threats, force, or promise of reward have been made to me and the statement is freely and voluntarily given.”

In the course of the cross-examination appellant’s counsel asked De Carlo if he was reading from his report, whether everything he remembered was written in it, and whether he could testify truthfully without having it before him. De Carlo was then cross-examined at length about payments made to him before and after October 18th for services rendered as an undercover agent in the case on trial. He denied receiving any payments prior to the events of October 18th. On re-direct he was requested to look at the last paragraph of the statement and to note that he had stated that he had been “promised no reward.” De Carlo then outlined the steps taken in its preparation. He stated that he had made no changes in it and that it represented his recollection of the events that occurred on the 18th. After the quoted part was read to the jury the witness testified that he had not been made any promise of reward when he signed the statement and that he had not asked for any money regarding the case on trial or any other case. The quoted paragraph of the statement does not conflict with De Carlo’s testimony from the witness stand.

We held in United States v. Bays, 448 F.2d 977 (5 Cir.), cert. den. 405 U.S. 957, 92 S.Ct. 1186, 31 L.Ed.2d 234 that an exception to the rule that the testimony of a witness may not be bolstered exists where the credibility of the witness is impugned on cross-examination. See Judge Friendly’s extended discussion of the exception in United States v. De Sisto, 329 F.2d 929 (2nd Cir.). These cases with many others are cited as supporting authority for the general rule that proof of prior statements of a witness are admissible where he has “in some way, been impeached or his credibility impaired or attacked.” 98 C.J.S. Witnesses § 648 Note 61, at 675. The challenge to the court’s ruling is not sustainable.

For the limited purpose of testing the veracity of appellant and certain of his witnesses, the court admitted a signed list of items dated October 24th contained in the travel case taken from the trunk of the Mercury and later returned to one Connie Perez, who appeared to be a resident of Dallas; and for the same limited purpose it also admitted the contents of an envelope containing photographs, newspaper clippings, letters and other matters taken from the travel case. The court’s action is assigned as error.

Jesse Cevallos, Manuel Perez and appellant all denied knowing Connie Perez. Manuel testified that he obtained the heroin in Earlimart, California, and left that point on the 14th of October and drove directly to Houston unaccompanied, arriving on the 17th, and that he did not know that appellant, who resided in Dallas, had also arrived in Houston until he met him at the pool hall on the morning of the 18th. He also specifically denied that he came through Dallas; that he did not tell appellant, whom he had not seen for a year, why he was in Houston; nor did appellant tell him why he was there; that the travel from the pool hall to the Holiday Inn was the first time appellant had been in the Mercury.

The news clippings had the word “Dallas” in them; some of the recently postmarked letters were addressed to Connie Perez in Dallas. In one of the letters purportedly from her brother there was a reference to “Ruben.” There was also a picture of a person resembling appellant.

There was no explanation of the presence of the travel case in the trunk of the Mercury. Its contents were properly for the consideration of the jury in impeachment of the testimony of Manuel that he made a direct trip unaccompanied from California and did not stop in Dallas, and that neither he, Jesse, nor appellant knew Connie Perez, who soon surfaced in Houston to sign the list and claim the contents of the case. In any event the court strictly limited the purpose for which the items were admitted. In view of that fact we find no error.

The several agents were in continuous contact with each other by radio prior to appellant’s arrest and exchanged information with respect to the conduct that they observed. One of the agents making the arrest of appellant had just seen the heroin in Room 452 of the motel and had sufficient probable cause for his arrest. The arrest was lawful and the search was pursuant thereto. The evidence that appellant possessed a gun was clearly admissible in proof of Counts IV and V.

We find no error in the court’s refusal to declare a mistrial after Count VIII was dismissed upon the Government’s failure to prove that appellant had been convicted of an assault with intent to murder in the District Court of Howard County, Texas.

Other alleged errors are asserted, but sketchily treated without supporting authority or appropriate reference to the record. We nevertheless have given them due consideration and find them lacking merit.

We affirm as to all counts.

      . Title 21 U.S.C. Sec. 846.

      . Title 21 U.S.C. Sec. 841(a) (1) and Title 18 Sec. 2.

      . Id.

      . Title 18 U.S.C. See. 924 (c) (2).

      . Id.

      . “[I]n determining whether a particular defendant was a member of the conspiracy, if any, the jury should consider only his facts and statements. He cannot be bound by the acts or declarations of other participants in the conspiracy until it is established beyond a reasonable doubt that a conspiracy existed and that he was one of its members.
      “Whenever it appears beyond a reasonable doubt from the evidence in the case that a conspiracy existed and that the defendant was one of the members, then the statements and the acts by any [person], likewise found to be a member may be considered by the jury as evidence in the case as to the defendant found to have been a member, even though the statements and acts may have occurred in the -absence and without the knowledge of the defendant, provided such statements and acts were knowingly made and done during the continuance of such conspiracy and in furtherance of some object or purpose of the conspiracy.
      “Otherwise, any admission or incriminatory statement made or act done otherside of court or by one person may not be considered as evidence in the case against any person who was not present and heard the statement made, or saw the act done.”

      . “[T]hey [the exhibits] are only to be considered for the purpose of testing the veracity of the testimony of the various witnesses.
      “They shall not be considered for the truth of their contents. For example, the letters should not be considered as evidence of the truth of any statements made therein. They can be considered only for the limited purposes of challenging or supporting prior testimony, and you may consider the existence of these items, where they came from, what they purport to be, consider them as to whether or not they are inconsistent with any of the testimony or consistent with or however you may deem it to be within those limitations of any witness who has testified in this case.”


source: Caselaw Access Project

author: BARRETT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dennis PENNETT, Defendant-Appellant.
    No. 73-1694.
    United States Court of Appeals, Tenth Circuit.
    May 1, 1974.

      E. Edward Johnson, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., and Monti L. Belot, Asst. U. S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.
    Benjamin E. Franklin, Kansas City, Kan. (David R. Gilman, Overland Park, Kan., on the brief), for defendant-appellant.
    Before LEWIS, PICKETT, and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Dennis Pennett appeals his jury conviction of conspiring to distribute cocaine in violation of 21 U.S.C.A. §§ 841(a)(1) and 846.

Pennett was indicted with Hank Boyle. The indictment charged that they wilfully and knowingly did “combine, conspire, confederate and agree together, with each other”, and with others to dispense a Schedule II narcotic controlled substance; that they advised Special Agent George Redden, Bureau of Narcotics and Dangerous Drugs (BNDD), who was acting in an undercover capacity, that they could supply high quality cocaine; and that they thereafter sold Redden a substance they alleged to be cocaine for $250. Boyle pled guilty to the charges and subsequently appeared as a witness on behalf of Pennett at his trial.

The Government introduced evidence that Agent Redden met with Boyle the night of the buy at a bar; that Boyle made several phone calls to Pennett to set up the buy; that Redden and Boyle went to Pennett’s home; that Boyle entered the home and thereafter brought out a substance he represented to be cocaine; that Redden paid $250 for the substance; that when Boyle returned to the house, Agent Redden field tested the substance and discovered that it was not cocaine; and that after Boyle and Redden subsequently left Pennett’s home, Boyle did not have the $250 on his person. The Government also showed that Agent Redden and Boyle were under surveillance during the buy by one Agent Scott.

Pennett testified that he had nothing to do with the sale; that he did not give or sell any cocaine to Boyle; and that he had never really met Boyle before the night of the buy. Boyle testified that he was the only active party in the sale; that he had gotten the cocaine in Wichita, Kansas; and that Pennett knew nothing about the sale and was not involved with it in any way.

On appeal, Pennett alleges that the Trial Court erred in: (1) admitting hearsay testimony; (2) denying his Motions for Acquittal; (3) denying him information available under the Jencks Act (18 U.S.C.A. § 3500); and (4) in admitting certain rebuttal testimony. Pennett also contends that a remark by the Government attorney during summation was reversible error, and that inconsistencies in Agent Redden’s testimony were tantamount to his being convicted by his (Redden’s) testimony alone.

I.

Pennett contends that the Trial Court committed plain error under Rule 52(b), Fed.R.Crim.P., 18 U.S.C.A., by admitting into evidence the hearsay testimony (statements of Boyle to Redden) elicited from Redden during the Government’s case in chief. Pennett also contends that the jury was not properly instructed as to limitations which must be imposed upon such hearsay evidence. We hold that each of these contentions is without merit.

Hearsay statements of co-conspirators may be admitted against one another whenever the existence of the conspiracy is established by independent evidence. Mares v. United States, 383 F.2d 805 (10th Cir. 1967), cert. denied 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969). Under Mares, such statements must be made during the conspiracy in order to be admissible. We followed and expanded this general rule in United States v. Coppola, 479 F.2d 1153 (10th Cir. 1973), wherein we noted that statements of co-conspirators made during the “continuation” of the conspiracy are admissible. See also Green v. United States, 386 F.2d 953 (10th Cir. 1967). Such statements must of course, be made in “furtherance” of the conspiracy. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); United States v. Coppola, supra.

When we apply these standards with full appreciation that Agent Scott operated in a surveillance capacity for Agent Redden the night of the buy, and that he observed Redden and Boyle at the bar and later at Pennett’s home, we hold that there is substantial independent evidence of the conspiracy. The Trial Court properly admitted the hearsay evidence given by Agent Redden.

Pennett’s contention that the Trial Court did not properly instruct the jury on the limitations placed upon hearsay evidence in accordance with Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 97 L.Ed. 593 (1953), is without merit. In Lutwak, the Court noted:

These declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them. 344 U.S. at 619.

The Trial Court specifically addressed the admissibility of the statements, twice during the trial, and once again in its general jury instructions. During the trial the Trial Court noted:

Now, Members of the Jury, before proceeding further there is one matter that I want to call your attention to. If you remember back during the Government’s evidence the Court let in some hearsay evidence, that is some statements by Mr. Boyle that were made outside the presence of this defendant to the agent who was serving at the time in an undercover capacity. If you remember, the Court said at that time that those statements would be conditionally admitted. So at this time the Court is instructing you now that the Court has admitted those so-called hearsay statements .... * * * * I will tell you at this time that if you find beyond a reasonable doubt from the evidence in the case that a conspiracy, as alleged, existed, and that the defendant was one of the members of that conspiracy, then any statements thereafter knowingly made and acts thereafter knowingly done by any person found to be a member of the conspiracy may be considered by the jury as evidence in the case against the defendant even though the statements and acts may have occurred in his absence and without his knowledge, provided, of course, the statements and acts were knowingly made and done during the continuance of the conspiracy and in furtherance of some object or purpose of the conspiracy.
TR. pp. 90-91.

This admonition, coupled with the general instructions given to the jury prior to their deliberations, adequately apprised the jury of the limitations placed on the hearsay statements. We will not impute to juries the inability to correctly understand the totality of their instruction, even in a complicated case, United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), nor will we impute nonfeasance to a jury in the form of a disregard of the Trial Court’s instructions, Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970), cert. denied 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971). None of the instructions given by the Trial Court were objected to- by Pennett, nor did he proffer any additional instructions. We hold that the jury was properly charged.

II.

Pennett contends that the Trial Court erred in denying his Motions for Acquittal and not directing a verdict at the close of the Government’s case and at the conclusion of all the evidence. This contention, advanced without cogent authority, is couched in a summary reiteration of the arguments set forth in I., supra, along with an attack on the admission of other evidence. Having carefully reviewed the record, we hold that the Trial Court did not err.

In passing on the sufficiency of the evidence to support a verdict of guilty, an appellate court does not weigh conflicting evidence nor consider the credibility of witnesses. Rather, appellate courts must view all the evidence, direct and circumstantial, in the light most favorable to the prosecution. United States v. Addington, 471 F.2d 560 (10th Cir. 1973). Applying these standards, with full appreciation that appellate courts cannot try cases de novo, we hold that there was substantial evidence supporting the jury’s determination of Pennett’s guilt of conspiracy.

III.

Pennett contends that the Trial Court erred in denying his formal demand for Agent Redden’s reports made pursuant to the Jencks Act (18 U.S.C.A. § 3500), after Agent Redden testified. Pennett also contends that the Trial Court erred in not directing the Government to deliver to him Agent Redden’s “daily logs.”

Pennett argues that since he “was entitled to the whole report without having any of it deleted”, he was denied a fair trial. He cites Mims v. United States, 332 F.2d 944 (10th Cir. 1964), cert. denied 379 U.S. 888, 85 S.Ct. 158, 13 L.Ed.2d 92 (1964), and United States v. McCarthy, 301 F.2d 796 (3rd Cir. 1962), as authority for the proposition that he was entitled to the full reports to test the credibility of Agent Redden.

Under the Jencks Act, the United States is required to produce statements which relate “to the subject matter as to which the witness has testified.” A finding by a trial court as to whether a particular writing or portion thereof is a “statement” as defined by the Act will not be disturbed on appeal unless clearly erroneous. Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Keine, 436 F.2d 850 (10th Cir. 1971), cert. denied 402 U.S. 930, 91 S.Ct. 1531, 28 L.Ed.2d 864 (1971).

In denying Pennett’s request for the full report, the Trial Court noted:

With that representation as to the matters deleted those would be pure matters which the defendant is not concerned or entitled to.
TR. p. 38.

Having carefully reviewed the entire report, “Report of Investigation”, and the Xeroxed copy afforded Pennett, we hold that the Trial Court did not err in ruling that Pennett was not entitled to the full report, especially when he was, for all practical purposes, afforded a copy of the whole report, and the deleted material was not testified to.

Pennett also contends that the Trial Court erred in not ordering the Government to deliver Redden’s “daily logs.” At the Motion for Rehearing on the Motion for New Trial, the following colloquy transpired:

THE COURT: How do you say that this is 3500 material ?
MR. FRANKLIN: Your Honor, we base our contentions that this is 3500 material because it involves activities of Agent Redden as to what he did with regard to the Defendant Dennis Pennett.
THE COURT: Doesn’t 3500 have to do with statements ?
MR. FRANKLIN: And it says statements, yes, and I think anything that an agent writes down, once it is written, becomes his statement.
THE COURT: Oh, no, you don’t have any law that says that do you?
MR. FRANKLIN: I don’t think counsel has any — ■
THE COURT: You don’t have any that says it is.
MR. FRANKLIN: Not specifically daily logs. Now I haven’t had an opportunity to research it but believe me, if it is in the law or any book, I’ll have it.
THE COURT: Well, you might give the Court the benefit of that instead of sandbagging them.
TR. pp. 5, 6.

We are inclined to believe that Pennett is still “sandbagging”, in view of the fact that he has yet to set forth either persuasive argument or cogent authority in support of his contention that “daily logs” are statements under the Act. We are neither obligated nor inclined to make appellant’s case. Nevertheless, our independent research has failed to reveal authority supportive of Pennett’s contention.

The Jencks Act was adopted by Congress following Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L. Ed.2d 1103 (1957). The object of the Act was not only to protect government files from unwarranted disclosure, but also, at the same time, to allow defendants materials usable for the purposes of impeachment. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); United States v. Smaldone, 484 F.2d 311 (10th Cir. 1973). Under the Act, the burden is on the defendant to show that particular materials qualify as “statements” and are subject to production. United States v. Smaldone, supra; 1 A.L.R.Fed. 252 (1969).

We have held that FBI reports which did not relate to anything in direct examination of the FBI agent who testified at trial were not producible. United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972). In United States v. Swindler, 476 F.2d 167 (10th Cir. 1973), cert. denied 414 U.S. 837, 94 S.Ct. 183, 38 L.Ed.2d 72 (1973), we held that it was not error for the government to refuse to furnish an agent’s informal descriptions of the testimony of several witnesses.

We hold that the Trial Court did not err in holding that the daily logs were not “statements” under the Act. Our inspection of these “logs” convinces us that they were definitely not “statements” but rather merely a part of the BNDD’s internal recordkeeping procedures. The “logs”, or more correctly, “Daily Activity Reports”, set forth daily operations, expenses not vouchered, operation of government vehicle, and manpower utilization. The reports in question set forth a synopsis of daily activity in an extremely cursory manner. It is true that a portion of the “logs” dealt with our immediate case, but all of that material was contained in the copy of the “Report of Investigation” provided Pennett. Other portions of the “logs” contained information relating to other cases, constituting information which Pennett was not entitled to. Congress did not intend the Jencks Act to afford criminal defendants carte blanche discovery means whereby government materials would be available to them in ritualistic fashion regardless of materiality and relevancy. A. degree of secrecy of internal operations is mandatory to, and often the essence of, good police operations which we will not interfere with on the basis of bald allegations which do not evidence actual prejudice to, substantial rights.

IV.

Pennett contends that the Trial Court erred in admitting improper rebuttal testimony from Agent Redden. The mere fact that testimony may have been given on direct does not preclude its admissibility on rebuttal. Hoffman v. United States, 68 F.2d 101 (10th Cir. 1933); United States v. Marsh, 451 F. 2d 219 (9th Cir. 1971). The admission of rebuttal evidence lies within the sound discretion of the trial court. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960).

V.

We have carefully reviewed each of the other allegations of error raised by Pennett and find them to be without merit.

Affirmed.

      . 21 U.S.C.A. § 841(a) (1) provides:
      (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ; or * * *

      . 21 U.S.C.A. § 846 provides:
      Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      . 18 U.S.C.A. § 3500 provides in part:
      (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.


author: HOLLOWAY, Circuit Judge.

text:
    Edward S. McGRATH, Plaintiff-Appellee, v. WALLACE MURRAY CORPORATION, a Delaware Corporation with its principal place of business in Pennsylvania, dba Simonds Abrasive Company, and Simonds Abrasive Company, a foreign corporation, Defendant-Appellant.
    No. 72-1823.
    United States Court of Appeals, Tenth Circuit.
    Argued May 21, 1973.
    Decided April 22, 1974.
    Rehearing Denied June 24, 1974

      Harold G. Christensen, Salt Lake City, Utah (Worsley, Snow & Christensen, and Craig S. Cook, Salt Lake City, Utah, on the brief), for defendant-appellant.
    Glen M. Richman, Salt Lake City, Utah (Sandack, Richman & Sessions, Salt Lake City, Utah, on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, LARAMORE, Senior Judge, and HOLLOWWAY, Circuit Judge.

       Of the United States Court of Claims, sitting by designation.

   HOLLOWAY, Circuit Judge.

Defendant Wallace Murray Corporation (Murray) appeals from a judgment awarding damages against the company in a diversity personal injury suit. The judgment was entered on a jury verdict in favor of plaintiff Edward McGrath for |35,000 for injuries suffered in an accident involving an abrasive disc manufactured by Simonds Abrasive Company (Simonds) whose liabilities were assumed by Murray. As grounds for reversal Simonds asserts numerous contentions to support its general propositions that the trial court erred in instructing the jury on product liability theories under Utah law and that the court erred in admitting and excluding evidence. No challenge is made to the sufficiency of the evidence.

Plaintiff McGrath’s injuries occurred at the shop of Star Brass Foundry of Salt Lake City, Utah. Around 4:30 p. m. on June 18, 1968, McGrath picked up a pneumatic grinder at the foundry shop to stamp an identifying alloy number on a steel casting. According to McGrath’s witnesses the disc had been taken from a previously unopened box that morning by a foundry foreman, Rolfe, who gave the disc to another employee, Parker. Parker attached the disc to the grinder and used it for about 3 to 4 hours of grinding that day. Approximately % to % of an inch of the disc’s outer surface was worn away.

After seeing Parker put down the grinder, McGrath picked it up and started to use it. He worked without the use of a guard which was furnished with the grinder when it was purchased. However at the time the accident occurred, guards were not used on that type of grinder by the employees of the foundry. As soon as McGrath touched the casting with the abrasive disc on the grinder, the disc disintegrated. Flying particles of the disc struck McGrath in the genital area and legs. No issue is raised in regard to damages awarded for his injuries.

1. Instructions by the trial court

For reasons that follow we must hold that refusal to submit a principal defense theory in the instructions was error. We have, of course, considered the instructions as a whole since complaint of an omission must be measured against the entire charge, see Marshall v. Ford Motor Company, 446 F.2d 712, 715 (10th Cir.), and since a party is not entitled to an instruction in any particular form where the substance of the instruction is fairly covered. See Marshall v. Ford Motor Co., supra at 714; Grain Dealers Mutual Insurance Co. v. Farmers Union Coop. Elevator and Shipping Ass’n, Kirwin, Kansas, 377 F.2d 672, 680 (10th Cir.).

Simond’s main defenses at trial were that the injury would not have occurred if McGrath had been using the guard and that the disintegration of the disc resulted from damage to it caused by the foundry employees. Simonds sought to have the trial court submit its theories to the jury by instructions that Simonds would not be liable if McGrath was guilty of contributory negligence, if he had assumed the risk, or if there had been misuse of the disc.

Under the instructions actually given, contributory negligence was available to Simonds only as a defense to the negligence theories of liability. Simonds raises no objection on appeal to this restriction. However there was no instruction given on assumption of the risk or misuse of the product as possible defenses to any theory of liability. Thus, as the case went to the jury, McGrath’s conduct in failing to use the guard was not presented as a possible defense to the claims of strict liability and warranty. Simonds does object vigorously to the trial court’s refusal to instruct on such a defense to these claims.

The three concepts of misuse, assumption of the risk and contributory negligence are much discussed as products liability defenses and they overlap considerably. See generally, Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305, 309; Noel, Defective Products: Abnormal Use, Contributory Negligence and Assumption of the Risk, 25 Vand.L.Rev. 93; Epstein, Products Liability: Defenses Based on Plaintiff’s Conduct, 1968 Utah L.Rev. 267, 268-69; Annot., 46 A.L.R.3d 240. As stated, there is no objection before us to the refusal to submit contributory negligence as a defense to the strict liability and warranty claims. And we think that under Utah law the trial court properly refused to give the instruction on assumption of the risk, since there was no evidence that McGrath had knowledge of a specific defect in the disc, which seems to be required as a basis for the defense in Utah. See Johnson v. Maynard, 9 Utah 2d 268, 342 P.2d 884; Clay v. Dunford, 121 Utah 177, 239 P.2d 1075. We must agree, however that it was error for the court to refuse to submit any defense as a misuse or similar theory based on use of the disc without a guard in connection with the plaintiff’s claims of strict liability and warranty.

There was evidence tending to show that the Cleco grinder was intended to be used with a guard and that use of the guard could have prevented Mc-Grath’s injury. There was also proof showing that the foundry employees had chosen to work without the guard because it made their use of the grinder more difficult. In view of such proof we feel that it is wrong to submit to the jury the plaintiff’s strict liability and warranty theories, while denying a defense based on failure to use the guard since some such defense has been generally permitted where the plaintiff’s theories of recovery are recognized.

First, we thus hold that there must be a retrial with a charge submitting a misuse or similar defense theory against the strict liability and warranty claims in connection with the proof that the guard was not used, if the evidence again properly raises such a defense.

Secondly, the defendant also argues that the instructions should have covered a misuse defense in connection with its proof tending to show that the disintegration of the disc resulted from its being mishandled. However the strict liability instruction said one is subject to liability “who sells any product in a defective condition unreasonably dangerous to the user or consumer.’’ And the charge made it a condition of liability that the product “. . . .is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. .” While an explanatory reference to the facts and conflicting proof may be desirable for clarity, we feel the mishandling issue was sufficiently covered in the elements of the plaintiff’s case. See White Motor Corp. v. Stewart, 465 F.2d 1085, 1088-1089 (10th Cir.); Daleiden v. Carborumdum Co., 438 F.2d 1017, 1022 (8th Cir.); § 402A, Restatement, Torts (2d), and comment h.

Third, defendant contends that the trial court erred in the instruction given on the plaintiff’s failure to warn theory. He says the court failed to make it clear that there is no duty to warn of obvious dangers.

It is true that in one portion of the charge dealing with warning users and consumers of the inherent dangers in the discs that there was no limitation to dangers that are not obvious. However in an earlier part of the instructions the court stated:

A manufacturer who knows or in the exercise of reasonable testing or inspection should realize that its product is likely to be dangerous when used for the purpose for which it is made and has reason to believe that those who use it will not realize the extent or seriousness of the risk has a duty to exercise reasonable care to warn them of the danger involved. Failure to fulfill that duty is negligence. If such negligence in any one or more of the particulars I have been specifying proximately results in injury to the user of the product, the manufacturer is liable therefor.

We are satisfied that this portion of the charge properly defined the duty of the manufacturer to warn. See Schneider v. Suhrmann, 8 Utah 2d 35, 327 P.2d 822, 823. Thus, viewing the instructions as a whole we cannot agree that prejudicial error occurred in this respect, and clarification of the duty to warn may be attended to on retrial.

Defendant objects on several grounds to the trial court’s instruction on res ipsa loquitur. In view of our disposition we feel it unnecessary to discuss these arguments. We believe the trial court was correct in submitting the theory in view of the proof made. And the instruction is not shown to have been improper under Utah law. Thus we conclude that the objections to the res ipsa loquitur instruction are not well taken.

2. Evidentiary rulings

Defendant contends that the trial court erred by admitting into evidence plaintiff’s exhibit No. 5, which was a credit memo from the supplier, the Galigher Company, showing the return of “defective wheels.” Defendant says there was no foundation laid for the exhibit, and we must agree.

Plaintiff’s attorney had assured the court there would be evidence showing the return of the wheels in one or more groups, but it was not offered. Moreover no evidence was presented as to the identity of the wheels referred to by the invoices, or of any of the circumstances surrounding their return. On this state of the record we must agree that the exhibit was irrelevant and prejudicial to the defendant, and inadmissible. Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 40 F.R.D. 96, 100 (N.D.Ill.).

Defendant also contends that it was error to admit into evidence a broken wheel report prepared by Mr. Price, a Simonds Abrasive Research Director who testified at trial. The report was dated October 12, 1967 (about eight months before plaintiff McGrath’s injury) and dealt with a type 27 abrasive wheel, the same type as the one involved in McGrath’s injury. The report stated that the disintegration of that disc was “almost certainly due to the lack of reinforcing glass in the center of the wheel.”

Defendant argues that the report should not have been admitted because there was no proof of any error in the design of the wheel. It also says the report was not relevant to show that defendant was on notice of disintegration when fiberglass was omitted, since there was no intent not to include such fiberglass.

We feel the report was properly admitted. It was clearly relevant to show that Simonds was aware of the risk from failure to include a reinforcing agent. Also it was germane as to whether the product as sold was unreasonably dangerous to the user — a point properly covered in the trial court’s instruction on strict liability. And for similar reasons the report would bear on the extent of the defendant’s duty to warn. We are satisfied that the report was relevant and was properly admitted.

Lastly defendant argues that the trial court erred in refusing to admit a portion of the General Safety Orders of the Industrial Commission of Utah. Plaintiff stresses a provision in the Orders on the use of guards where workmen are exposed to moving parts of machinery. Plaintiff objected to the admission of the code on the grounds that it was not a State statute or governmental regulation and that it was cumulative. The trial court sustained the objection on both grounds and gave no instruction on the provisions of the orders.

We must agree that a violation of the provisions would be at least some evidence of negligence, which apparently was the basis on which the evidence was offered. However as further evidence of contributory negligence by the plaintiff the orders were not significantly different with regard to the provisions for use of the guard from that which was the requirement of the American Standards Associations’ Code, previously introduced into evidence by the plaintiff. We do not believe the ruling that the proof was cumulative was an abuse of discretion. See Kanatser v. Chrysler Corp., 199 F.2d 610, 619 (10th Cir.), cert. denied, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710; Manbeck v. Ostrowski, 128 U.S.App.D.C. 1, 384 F.2d 970, 973 cert. denied, 390 U.S. 966, 88 S.Ct. 1077, 19 L.Ed.2d 1170.

We feel the remaining propositions raised are without merit or need not be discussed in view of our disposition. For the reasons stated we conclude the judgment must be reversed and the case remanded for a new trial.

      . The disc was manufactured by Simonds Abrasive Company. In 1966 Murray assumed all liabilities and assets of Simonds. Therefore in this opinion we will refer merely to Simonds as manufacturer of the disc. The Simonds products were distributed in Utah by the Galigher Company. McGrath’s injury occurred at Star Brass Company, partly owned by McGrath, which purchased discs from the Galigher Company in 1966, 1967 and 1968.

      . In the portion of the charge relating to strict liability the trial court did refer to liability for . . . “[i]njury or damage from normal use of said product.” We do not, however, feel that this isolated and brief mention of “normal use,” made without any elaboration or reference to contentions about the guard, sufficiently covered this defense theory.

      . No question is raised by appellant as to the trial court’s determination that the strict liability theory applies in Utah, although Utah appears not to have recognized the principle yet. See Perkins v. Fit-Well Artificial Limb Co., 30 Utah 151, 514 P.2d 811. The court’s determination on state law seems reasonable. See Moomey v. Massey-Ferguson, Inc., 429 F.2d 1184, 1186 (10th Cir.).

      . We do not assume to denominate such a defense as one of “misuse” of the product. The formulation of the theory under which the defense should be submitted is for the trial court in light of Utah tort principles. It suffices, we feel, to hold as we do that the defense based on failure to use the guard should not be wholly denied in connection with the strict liability and warranty claims since such a defense under some formulation is generally permitted against such claims. See note 6, infra.

      . The defendant argues that McGrath should have known that the disc could have been damaged and likely to fracture, which made use of the guard advisable. The defendant offered proof by an expert that the disintegration resulted from damage in operation. There was contradictory expert testimony for the plaintiff, claiming that the disintegration was the result of a defect in the product due to lack of a reinforcing agent or other manufacturing errors.

      . See, e. g., Hardy v. Hull Corporation, 446 F.2d 34 (9th Cir.) (applying Arizona law where available safety gates were not used by purchasing company) ; General Motors Corp. v. Walden, 406 F.2d 606, 608-609 (10th Cir.) (applying Arizona law) (recovery by plaintiff upheld); Grant v. National Acme Co., 351 F.Supp. 972 (W.D.Mich.) (dictum); Preston v. Up-Right, Inc., 243 Cal.App.2d 636, 52 Cal.Rptr. 679; Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305, 309; Perfection Paint & Color Co. v. Konduris, 147 Ind.App. 106, 258 N.E.2d 681, 689 (upholding recovery by plaintiff); Hawkeye Security Insurance Co. v. Ford Motor Co., 199 N.W.2d 373, 381 (Iowa) (dictum); Walk v. J. I. Case Co., 36 A.D.2d 60, 318 N.Y.S.2d 598 (App.Div.); Speyer, Inc. v. Goodyear Tire & Rubber Co., 222 Pa.Super. 261, 295 A.2d 143, 145; see also Moomey v. Massey-Ferguson, Inc., 429 F.2d 1184, 1188-1189 (10th Cir.) (applying New Mexico law); Speed Fastners, Inc. v. Newsom, 382 F.2d 395, 399 (l0th Cir.) (applying Oklahoma law).
      Plaintiff rejects the theory that failure to use a guard shows any misuse and argues it goes only to contributory negligence. As stated earlier, note 4 supra, we should not attempt a definite labeling. However, whether termed possible misuse, e. g., Moomey v. Massey-Ferguson, Inc., supra; General Motors Corp. v. Walden, supra, or otherwise the theory should have been submitted as a possible defense to the strict liability and warranty claims.

      . The portion of the code emphasized by Simonds on appeal provides:
      All moving parts of machinery where the workman may be exposed shall be adequately guarded. Guards for stationary machines should as far as possible conform to the standards set forth in the American Standards Associations’ Code. A subsequent portion of the Orders included in the exhibit dealt with abrasive wheels.

      . The orders apparently are promulgated pursuant to 4 Utah Code Ann. § 35-1-36 (1953), which could be construed as giving the orders the force of law. See Arnold v. Gardiner Hill Timber Co., 199 Or. 517, 263 P.2d 403. Simonds, however, did not argue that a violation of the orders would be negligence per se, even though similar regulations by state departments in Utah have been so treated. See Hamblin v. Mountain States Telephone & Telegraph Co., 271 F.2d 562 (10th Cir.). We therefore do not reach the question whether a violation of the orders submitted by the defendant here would have been negligence per se by reason of having the force of law.


author: WATERMAN, Circuit Judge: FRIENDLY, Circuit Judge

text:
    William F. BUCKLEY, Jr., et al., Plaintiffs-Appellees, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant-Appellant, National Labor Relations Board and American Civil Liberties Union, Amici Curiae.
    No. 81, Docket 73-1667.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 7, 1973.
    Decided April 30, 1974.

      C. Dickerman Williams, Baker, Nelson & Williams, New York City, John L. Kilcullen, Edith D. Hakola, Washington, D. C. (District of Columbia Bar), for plaintiffs-appellees.
    Alexander M. Bickel, New Haven, Conn., Mortimer Becker, Edward Schlesinger, Robert M. Jaffe, New York City, for defendant-appellant.
    Glen M. Bendixsen, Chief, Spec. Litigation, Stephen C. Yohay, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliot Moore, Asst. Gen. Counsel, for N. L. R. B.
    Melvin L. Wulf, New York City, for American Civil Liberties Union.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   WATERMAN, Circuit Judge:

This is an appeal by the labor organization, American Federation of Television and Radio Artists (AFTRA) from an order entered in the United States District Court for the Southern District of New York, declaring, in part on constitutional grounds, that any provision of any collective bargaining agreement “requiring, or purporting to require, that [appellees William F. Buckley, Jr. and M. Stanton Evans] continue to be members of [appellant union, American Federation of Television and Radio Artists], pay dues to [appellant union] and/or comply with [appellant union’s] orders and regulations, as a condition of” appearing on radio or television in their roles as paid commentators on public affairs is “void and of no effect.” Insofar as the appellees’ responsibility to tender periodic dues to the unión is nullified by the judgment below, we reverse on the merits. Moreover, inasmuch as we hold that the district court was without jurisdiction to adjudicate the other issues raised by the appellees’ complaints, which pertained to compulsory union membership and to compulsory compliance with union orders and regulations, we also reverse the remaining portions of the district court’s judgment.

With great care the district court accurately set forth the specific facts and circumstances from which this litigation arose. See 354 F.Supp. at 826-836. No useful purpose would be served by a detailed repetition of the presentation so articulately and comprehensively set forth in the opinion below. Moreover, the relative narrowness of the decision we reach today renders immaterial for our purposes much of the factual background developed by the district court. We shall therefore confine our discussion of the facts to those which are within the ambit of the limited role we think a federal court can play in this dispute at the present time.

Both appellees are well-known articulate exponents of a “conservative” political philosophy. They are engaged in a plethora of activities, amongst which are regular appearances on radio and television. Mr. Buckley is the host of his own television program, “Firing Line,” in which he usually engages in spirited argument guest spokesmen of “liberal” persuasion. Mr. Evans appears as a participant on the CBS radio series “Spectrum,” a program in which on a regular basis a number of spokesmen for differing political and social philosophies express their opinions on topics of their own choosing.

The employing parties with whom Buckley and Evans negotiated their contracts of employment have collective bargaining agreements with AFTRA. These latter agreements, by incorporation of the union’s “Code of Fair Practice,” obligate the employers to employ only members of AFTRA or persons who become members of AFTRA within thirty days after the commencement of the employment relationship. This “union shop” provision is authorized, but not required, by Section 8(a)(3) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(3), which reads:

(a) It shall be an unfair labor practice for an employer — ■
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an - employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later. * * -x- Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

In addition, the union’s constitution purports to impose upon its members responsibilities to the union in excess of those contemplated by § 8(a)(3). For example, Article XVIII, Sec. 1 of the AFTRA Constitution describes the punishments to which a union member is subject for failure to fulfill those responsibilities :

Any member who shall be guilty of an act, omission, or conduct which in the opinion of the Board is prejudicial to the welfare of the Association, or of any of its Locals, or of any of its members, as such, or any member who shall fail to observe any of the requirements of the Constitution, or of any By-Laws, rules, regulations or orders lawfully issued by the Association, any Local or any duly authorized committee or agent of said Association or Local, or any member who shall in any way be indebted to the Association or any Local thereof, may, in the discretion of the Board, be either fined, censured, suspended or expelled from membership. .

In their complaints in the district court the appellees challenged alleged requirements allegedly imposed upon them, that they be members of the union, that they pay dues to the union, and that they comply with all union orders and regulations. They claimed that these requirements which they allege were sought to be imposed upon them by the union constituted unreasonable restraints on the right of free speech and deprived them of their property without due process of law. The imposition of these requirements was asserted to have been “accomplished by the defendant AFTRA acting under the authority of the National Labor Relations Act.”

As we have already stated, the expansive relief granted by the district court absolved appellees from union membership, from paying dues, and from complying with union regulations. For reasons that appear infra we hold that as to the issues of compulsory membership and compliance with union regulations, the National Labor Relations Board (“NLRB”) had primary jurisdiction under the preemption principle of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Thus we hold that the federal district court exceeded its power in deciding these two issues, and we do not reach the merits with respect to them. Regarding the dues requirement, however, we do reach the merits and hold, contrary to the result reached by the district court, that this requirement does not abridge appellees’ first amendment right of free speech.

It is elementary constitutional doctrine that the first amendment only restrains action undertaken by the Government. Railway Employes’ Dep’t v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); Linscott v. Millers Falls Co., 440 F.2d 14 (1 Cir.), cert. denied, 404 U.S. 872, 92 S.Ct. 77, 30 L.Ed.2d 116 (1971). There is, however, a crucial corollary to this rudimentary tenet. When private action becomes imbued with a governmental character, or when the Government significantly insinuates itself into the operative activities of private parties, then action by private parties may be regarded as “state action” and, if so, will be subject to all the constitutional limitations on governmental action. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Here it is alleged that the requirement found in the AFTRA Code of Fair Practice that dues be paid is “accomplished by the defendant AFTRA acting under the authority of the National Labor Relations Act.” It is true that § 8(a)(3) expressly authorizes union shop agreements which may require that employees pay union dues. The section also specifically permits the discharge of an employee who fails to comply with such a dues requirement. Appellees contend that this congressional authorization makes a union shop provision contained in a collective bargaining agreement negotiated between private parties “state action.” In support of this contention, appellees rely primarily on Railway Employes’ Dep’t v. Hanson, supra, and Linscott v. Millers Falls Co., supra. In Railway Employes’ Dep’t, the Supreme Court held that the Railway Labor Act provision comparable to § 8(a)(3) of the National Labor Relations Act transmutes otherwise private union shop agreements into “governmental action.” The Railway Labor Act, however, explicitly provides that union shops are permissible despite any state law that would otherwise prohibit them, whereas Section 14 of the NLRA, on the other hand, declares that a state “right to work” law forbidding union shops will not be superseded by § 8(a)(3). However, the First Circuit in Linscott v. Millers Falls Co., supra, quoting Railway Employes’ Dep’t v. Hanson, supra at 232, ascribed little significance to this distinction between the two labor statutes, and found that a union shop agreement under the NLRA constituted government action because “the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.” 440 F.2d at 16. Appellees would have us adopt this reasoning, and after first holding that the union shop agreement is subject to constitutional scrutiny, then proceed to rule in their favor by holding that the dues requirement violates the first amendment.

In order to establish jurisdiction to reach the merits of this first amendment claim, it might at first blush appear we must resolve the “government action” issue. But this is not necessarily so.

The line between a jurisdictional issue unrelated to the merits of an action and one which depends upon adjudication of the ultimate merits of a case is sometimes a fine line. In fact, many jurisdictional problems cannot be unqualifiedly inserted into one category or the other. It often is difficult to resolve jurisdictional issues without, in effect, reaching determinations on the merits. See, e. g., Comment, 47 N.Y.U.L.Rev. 349, 354 (1972). In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court sought to alleviate some of these conceptual incongruities by developing a practical approach. This approach allows a federal court to assume jurisdiction over an action alleging violation of the U.S. Constitution if satisfied by an initial cursory examination that there is, on the merits, a justiciable issue. In Bell the plaintiffs sought money damages from the defendants, Federal Bureau of Investigation agents, who were alleged to have improperly searched the plaintiffs’ premises and to have falsely imprisoned the plaintiffs in derogation of their fourth and fifth amendment rights. The defendants argued that the fourth and fifth amendments represent proscriptions “against the federal government as a government” and could not support a damage suit against particular government employees for allegedly violating those proscriptions. The Court approached the issue of whether such a suit, bottomed upon alleged violations of constitutional limitations, was maintainable — an issue somewhat analogous to the issue of whether a suit alleging violation of the first amendment can be maintained against the private party, AFTRA, here. In Bell the Court held that, in the circumstances there alleged, federal jurisdiction to adjudicate the plaintiffs’ claims on the merits could be defeated only by a showing that an alleged violation of the Constitution is really immaterial to the practical resolution of the litigation and was raised solely for the purpose of achieving jurisdiction, or by a showing that the claim is wholly insubstantial and frivolous. Id. at 682-683.

So here, when we apply the practical test of Bell, we conclude, without having to decide the issue of whether AFTRA’s dues requirement is “government action,” that the district court had jurisdiction to adjudicate the appellees’ claims that AFTRA’s dues requirement impinges upon appellees’ first amendment rights. First of all, the constitutional claim is neither “immaterial” nor presented “solely for the purpose of obtaining jurisdiction.” More importantly, although the government action aspect of the claim may be a close question, the claim is not an insubstantial or frivolous one. Indeed, the contrary is true. For instance, an examination of the contrasting views expressed in the majority and concurring opinions in Linscott v. Millers Falls Co., supra, convinces us that the claim appellees here assert under the Constitution is not made insubstantial and frivolous because of its “government action” aspect.

Having established that we have jurisdiction to decide whether AFTRA’s requirement that appellees pay its pre- ■ scribed dues violates appellees’ first amendment rights, we hold there is no violation. In so deciding, we do not need to reach the issue of whether government action is involved. We conclude that even if it were, which we do not intimate, the dues requirement is not constitutionally infirm.

Acts of speech and of expression, although protected by the first amendment, are not so exalted that they can never be, even indirectly, obstructed. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Indeed, even with reference to freedom of the press, the Supreme Court has recently reaffirmed what has long been understood to be the law: “[Otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed.” Branzburg v. Hayes, 408 U.S. 665, 682-683, 92 S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972). More specifically, where there is a proper governmental purpose for imposing a restraint and where the restraint is imposed so as not to “unwarrantedly abridge” acts normally comprehended within the first amendment, there is no abridgment of first amendment rights. Cox v. New Hampshire, supra at 574. Nor is there any abridgment of first amendment rights arising from the congressional authorization granting a union the power to collect dues from employees in a “union shop.” The congressional purpose in authorizing mandatory union dues is surely a permissible one, for Congress was understandably concerned with minimizing industrial strife and thereby insuring the unimpeded flow of commerce. It was the legislative judgment that these goals are most easily realized if a suitable collective bargaining apparatus exists, see, e. g., International Association of Machinists v. Street, 367 U.S. 740, 760, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), and so the national labor laws provide for an exclusive bargaining agent to represent each discrete employee bargaining unit. See, e. g„ § 9(a) of the NLRA, 29 U.S.C. § 159(a). To enable these agents to fulfill their statutory responsibility to represent all the employees while collectively bargaining with the employer, the statutes permit the levying of mandatory dues on all employees who will reap the benefits of the union’s representation of them in the contract negotiations with the employer. A required tolerance of “free riders,” i. e., those who enjoy the benefits of the union’s negotiating efforts without assuming a corresponding portion of the union’s financial burden, would result not only in flagrant inequity, see, e. g., NLRB v. General Motors Corp., 373 U.S. 734, 740-743, 83 S. Ct. 1453, 10 L.Ed.2d 670 (1963); Radio Officers’ Union v. NLRB, 347 U.S. 17, 41, 74 S.Ct. 323, 98 L.Ed. 455 (1954), but might also eventually seriously undermine the union’s ability to perform its bargaining function. It is thus manifest that the statutory treatment of mandatory union dues serves a “substantial public interest.”

Moreover, we find that the means adopted to achieve this proper purpose of reducing industrial strife are reasonable, and do not “unwarrantedly abridge” free speech. The dues here are not flat fees imposed directly on the exercise of a federal right. See Murdock v. Pennsylvania, 319 U.S. 105, 113-114, 63 S.Ct. 870, 87 L.Ed.2d 1292 (1943). To the contrary, assuming arguendo that government action is involved here, the dues more logically would constitute the employee’s share of the expenses of operating a valid labor regulatory system which serves a substantial public purpose. If there is any burden on appellees’ free speech it would appear to be no more objectionable than a “nondiseriminatory [form] of general taxation” which can be constitutionally imposed on the communication media. Branzburg v. Hayes, 408 U.S. 665, 683, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Grosjean v. American Press Co., 297 U. S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936).

Appellees also contend that they did not seek, and do not desire, to be represented by the union and that as they have not derived any substantial benefit from the union’s representation they are not “free riders.” The district judge accepted this contention, and although he found that the appellees derived some benefit from their memberships in union pension plans, he regarded this as not being substantial enough to make the appellees “free riders.” We disagree with the district court. There is no rational basis for distinguishing between the degrees of benefit one enjoys as a result of a union’s bargaining efforts on his behalf.

Turning now to the allegations that on pain of loss of employment the requirements of compulsory union membership and compulsory compliance with union regulations also violate the constitutional rights of plaintiffs to be employed by the media, we hold that the district court did not have jurisdiction to adjudicate these matters. Although appellees’ complaints do not explicitly allege violations of §§ 8(a)(3) and 8(b)(2), they do aver the commission of acts which we find are “arguable” unfair labor practices under those sections of the NLRA. When unfair labor practices are alleged “the federal courts must defer to the exclusive competence of the National Labor Relations Board.” San Diego Building Trades Council v. Garmon, supra at 245; accord, Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).

Both Buckley and Evans claim that they have not only been compelled to pay dues to the union but have also been “required” to join the applicable local organization and to comply with union rules and regulations. The union does not deny that its representatives informed Buckley that the ultimate penalty for failing to remain a “full-fledged” member would be his discharge from employment. It is abundantly clear that an “arguable” unfair labor practice would result if the union should carry out this threat. Buckley apprises us that he refrained from resigning from the union because he feared that he would suffer loss of media employment and also incur the significant hardships that would undoubtedly accompany such a discharge. Buckley’s decision not to resign was not an unreasonable decision, and it did not bar him from seeking declaratory relief. But inasmuch as the union conduct to which Buckley objects constituted arguable unfair labor practices, his selection of forum was incorrect. He should have taken his cause to the National Labor Relations Board, an administrative agency fully capable of granting declaratory relief to him if circumstances warrant such relief. See 5 U.S.C. § 554(e).

The only oral representations made to Evans were those made by his prospective employer. The substance of these remarks was that before Evans could appear on the “Spectrum” Radio Series, Evans had to join the union because the employer’s collective bargaining agreement mandated it. It also seems that Evans, as well as Buckley, believes that the requirements of compulsory membership, and the duty to comply with union rules and regulations, are imposed on him by the combination, on the one hand, of § 84 of AFTRA’s Code of Fair Practice to which Evans’s employer is subject under the collective bargaining agreement it has with AFTRA, and, on the other, Article XVIII of the AFTRA Constitution, to which Evans himself would appear to be subject as a “full-fledged” member of the union. Section 84 is the compulsory unionism clause, i. e., the provision obligating the employer to employ only those persons who are AFTRA members in good standing, or those who become such AFTRA members within thirty days of the inception of the employment relationship. Article XVIII of the AFTRA Constitution, quoted supra, gives the union the power to expel from membership any member who “shall fail to observe” any union rule or regulation. At first glance, the union would seem to have attempted to reserve to itself the power to force an employer to discharge an employee by the simple expedient of expelling the employee from union membership for any real or imagined infraction of its rules or regulations. On the other hand, §§ 8(a)(3) and 8(b) (2)’s substantial limitation on the ability of the union to so affect the employment relationship appears to receive implicit recognition in § 84 itself, which provides for automatic amendment of the section if the NLRA should be “repealed or amended so as to permit a stricter union security clause (emphasis added).” Evans’s case is distinguishable from Buckley’s case in that Evans’s case relies principally on these broad union-drafted documents rather than on the highly specific warnings Buckley received. However, in any event, it is the function of the NLRB to ascertain whether Evans’s controversy is sufficiently developed to enable it to declare the rights of the parties, and, if the controversy has so evolved, whether the union commits or would commit unfair labor practices by indulging in the conduct about which Evans is apprehensive.

Reversed and remanded.

FRIENDLY, Circuit Judge

(concurring) :

I concur in the result and in the majority’s holding that § 8(a)(3) is constitutional insofar as it permits a union to require employees in a union shop to pay ordinary dues and fees even if the employees- are radio and television commentators. However, I disagree that the issues of compulsory membership and compliance with union regulations, as presented on this appeal, fall within the exclusive jurisdiction of the National Labor Relations Board. The appellees sought a declaratory judgment that AF-TRA’s union security agreement, authorized by § 8(a)(3) of the Act, violated their constitutional rights, in part because it would expose them to union discipline and require them to become union members. Federal courts must give way to the National Labor Relations Board when the claim is that the conduct in question violates the unfair labor practice provisions of the NLRA. And to the extent that the appellees contend that the union would be committing an unfair labor practice by imposing fines or otherwise disciplining them, I agree that their claim is preempted. However, the real thrust of appellees’ argument seems rather to be that the Act authorizes the union to discipline them and is therefore unconstitutional. Since the preemption doctrine does not extend to constitutional attacks on the National Labor Relations Act, see Seay v. McDonnell Douglas Corp., 427 F.2d 996, 1002-1004 (9 Cir. 1970); Lewis v. AFTRA, 71 Misc.2d 253, 336 N.Y.S.2d 56 (Sup.Ct.1972), aff’d, 41 App.Div.2d 707, 341 N.Y.S.2d 625 (1st Dep’t 1973), the district court’s jurisdiction over the constitutional claims in this case was not preempted. However, as the court points out in footnote 5, and as the union concedes, an employee under the union shop provision of the Act need not accept “full-fledged” membership in the union, and thus can avoid the disciplinary sanctions to which “full-fledged” members may be subjected. Under this construction, I see no constitutional infirmity in § 8(a)(3) even as applied to persons whose First Amendment protection is of peculiar importance.

      . The Tenth Circuit disagrees with the First and has held that § 8(a) (3) does not render union shop agreements “government action.” Reid v. McDonnell Douglas Corp., 443 F.2d 408, 409-411 (10 Cir. 1971).

      . Of course we do not decide whether employees who have derived no demonstrable benefit from a union’s efforts are “free riders.”

      . Such allegations are unnecessary.
      Assuredly the proposition that Lockridge’s complaint was not subject to the exclusive jurisdiction of the NLRB because it charged a breach of contract rather than an unfair labor practice is not tenable. Pre-emption, as shown above, is designed to shield the system from conflicting regulation of conduct. It is the conduct being regulated, not the formal description. of governing legal standards, that is the proper focus of concern. Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).

      . The imposition of the “requirements” of membership and compliance with union rules is, as we shall demonstrate, conduct by which the union arguably violates § 8 of the National Labor Relations Act. As such, it is subject to the preemptive jurisdiction of the NLRB, San Diego Building Trades Council v. Garmon, supra. Abstention by the federal district courts is necessary to prevent “conflicting regulation of conduct.” Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, supra at 292. The dues requirement which we have already considered stands on a different footing, however. Not only is that requirement not arguably violative of § 8, as it must be for the jurisdiction of a federal district court to be preempted, it is incontestably authorized by that section. Deferring to the NLRB on the dues question is thus mandated neither by the Garmon test itself nor by the Garmon philosophy of fostering uniform and consistent treatment of the modes of conduct that Congress has sought to prohibit in § 8 of the National Labor Relations Act.
      Furthermore, our retention of jurisdiction over the dues claim does not render this case a proper occasion for the invocation of the doctrine of pendent jurisdiction. Application of the doctrine is discretionary, Winnick v. Manning, 460 F.2d 545, 550 (2 Cir. 1972); C. Wright, The Law of Federal Courts § 19, at 64 (2d ed. 1970), and seems particularly inappropriate under the circumstances here where the membership and rules compliance issues are distinct from the dues claim, and do not constitute alternative theories on the same pivotal facts as the dues claim, and where the judicial and legislative policy favoring uniform treatment of conduct arguably constituting unfair labor practices demands that one specialized agency, the NLRB, assume the principal responsibility for shaping the law.

      . See NLRA §§ 8(a) (3), 8(b) (2), 29 U.S.C. § 158(a)(3), (b)(2); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 197 n. 37, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); NLRB v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963). Indeed, in its brief, and at oral argument in this court the union concedes that “the imposition of obligations of membership other than, dues-payment will depend on continued full-fledged membership, which . . . cannot be imposed on pain of loss of employment.”
      The union also acknowledges that Buckley and Evans can avoid any other sanctions which the union might seek to impose on them by resigning from “full-fledged membership while continuing to pay dues.” The union attempts to qualify this concession, however, by noting that “whether Buckley and Evans can freely exercise [the right to resign from full-fledged membership] depends on circumstances.” The union’s assumption that Buckley and Evans can currently be considered “full-fledged” members is suspect. At least in Buckley’s case, the misrepresentations made to him that to retain his employment he was required to be and to remain a full-fledged AFTRA member appear to be sufficient to vitiate any “consent” he may have given to becoming and remaining a full-fledged member. Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1357 (9 Cir. 1970).
      As to whether there are issues of arguable unfair labor practices, we would point out that the union may have already violated § 8 (b) (1) of the NLRA by “coercing” Buckley, and possibly Evans, into becoming full-fledged members of the union. Under § 7 of the Act, Buckley apparently had the right to refrain from becoming a full-fledged member. The union’s misrepresentations to him regarding his obligations to the union appear to have effectively coerced Buckley into incurring responsibilities he was not required to accept. Coercion may be “inferred” from the success of these misrepresentations. Sheraton-Kauai Corp. v. NLRB, supra at 1357.

      . We note that the appellees’ right to continued media employment will not be endangered should they seek to crystallize their controversies with the union by resigning from full-fledged union membership. As long as they forward dues to the union they, through NLRB intervention, should be able to obtain a federal district court injunction against their discharge from employment, see 29 U.S.C. § 160(j), pending disposition of any litigation which might follow resignations. A threat of irreparable injury would exist, and, as we have explained, and as the union has conceded, there would be an excellent chance that Buckley and Evans would succeed on the merits of a claim that the payment of dues is a sufficient compliance.