author: PECK, Circuit Judge.

text:
    Geneva GRAY, Administratrix of the Estate of Roy A. Gray, Deceased, Plaintiff-Appellant, v. L. J. NAVY TRUCKING COMPANY, INC., Defendant-Appellee.
    No. 72-1522.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 29, 1972.
    Decided March 28, 1973.

      Charles E. Brant, Columbus, Ohio, for plaintiff-appellant; John Wolfe, Moore, Wolfe & Boll, Ironton, Ohio, Glander, Brant, Ledman & Newman, Columbus, Ohio, on brief.
    Robert L. Summers, Hamilton, Kramer, Myers & Summers, Columbus, Ohio, on brief, for defendant-appellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PECK, Circuit Judge.

This is an appeal from a jury verdict in a wrongful death action. The uncontested facts show that the appellant’s husband, Roy Gray, was killed when his automobile struck the appellee’s tractor-semitrailer in June of 1966. As Gray was proceeding south on the west side of U.S. Route 23, Rufus Sifford drove the appellee’s truck out of a restaurant parking area and across the two northbound lanes and into the southbound lanes. It was at this point that Gray’s Volkswagen struck the front of the right rear set of wheels of the trailer; Sifford and his helper in the cab were uninjured, and Gray died instantly.

The appellant then brought this wrongful death action, to which the defendant trucking company interposed a contributory negligence defense, alleging and attempting to prove that the accident was Gray’s fault because he was driving without headlights and because he was driving while intoxicated. In support of its contention that Gray was driving while intoxicated, the appellee offered three documentary exhibits, each of which was admitted into evidence under the Federal Business Records Act, 28 U.S.C. § 1732(a), “for all purposes," and the plaintiff has appealed from that order. Appeal is also taken from the ruling of the District Court allowing the introduction of a deposition in which the investigating officer stated his opinion that the cause of the accident was Mr. Gray’s driving while intoxicated.

The first contested document is a laboratory report from Mercy Hospital which states that the blood alcohol content of the tested blood was 459 mg. per 100 cc’s of blood. The appellant contends that this report is inadmissible under the Federal Business Records Act because the defense did not show that the blood tested was Gray’s, the procedure used in taking the blood sample, the manner of making the test, nor the chain of custody of the sample.

Common law provided that out of court statements contained in business records would be inadmissible over a hearsay objection. However, it was soon recognized that records kept in the ordinary course of business are usually accurate and reliable, and an exception to the hearsay rule was developed, the most burdensome feature of which was the requirement that each participant in the making of the record, whether entrant or informant, be produced or at least be identified as unavailable to verify the records. McCormick, Evidence, § 289. This aspect of the exception was dealt with by the adoption of what is now the Federal Business Records Act, which eliminated the requirement that the maker of the record verify its authenticity. Schmeller v. United States, 143 F.2d 544, 550 (6th Cir. 1944). The legislative history of the Act .indicates that the intention of the drafters was not to make admissible otherwise incompetent or irrelevant evidence merely because such evidence appeared in a record made in the regular course of business, Gordon v. Robinson, 210 F.2d 192, 196 (3d Cir. 1954), but only to “facilitate admission of records which experience has shown to be quite trustworthy.” Palmer v. Hoffman, 318 U.S. 109, 113, 63 S.Ct. 477, 480, 87 L.Ed. 645 (1943).

Since the Act is an exception to the hearsay rule, it would seem that it should not serve to cure any nonhearsay defects, such as relevancy or competency. However, an examination of the leading cases indicates that the courts are in irreconcilable conflict over the issue of whether the Act serves to cure more than mere hearsay defects related to the making of the business entry. For example, Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962) held that the Act presumes that diagnoses and scientific tests have been properly made by qualified personnel, and that the qualifications of the diagnostician and the procedures involved in running the test and the chain of custody of the samples need not be established. Schmeller v. United States, supra, held that the competency of records admitted under this Act must be otherwise established. The conclusion of the major commentators is in accord with prior holdings of this Court that the Act should be interpreted as abolishing only the requirement that the one who records the entry on the reports of others need have knowledge of the facts himself. E. g., McCormick, Evidence, § 286 (1954); 5 Wigmore, Evidence, § 1424 (3d Ed. 1940); Jones, Evidence, § 12:11 (6th Ed. 1972).

The appellee relies upon Thomas v. Hogan, supra, which held that the results of a blood test were admissible under the Act. While we note that the Fourth Circuit observed that the Sixth Circuit had already reached a contrary result in Baltimore & Ohio R. R. v. O’Neill, 211 F.2d 190 (6th Cir.), reversed on other grounds, 348 U.S. 956, 75 S.Ct. 447, 99 L.Ed. 747 (1954), we think that the facts of Thomas differ substantially from those of this ease. In Thomas, the attending physician, having been qualified as an expert witness, identified the test as a relatively simple, commonly performed scientific procedure. He testified concerning the extraction of the blood sample and the required laboratory procedures, and that he himself had made the final determination concerning the blood alcohol ratio. Similar facts are notably lacking in this case. For example, there is no evidence to qualify the test as scientifically acceptable or validly performed; nor was this an entry taken from the regular records of the hospital concerning a patient. The test was not performed in the regular course of patient treatment, but on a specimen of blood brought into the hospital under circumstances which were not established. The consequent report of the results of this test simply do not rise to the level of a business record. In Taylor v. B. Heller & Co., 364 F.2d 608 (6th Cir. 1966), this Court held that records sought to be admitted under this Act must be shown to be the product of the ordinary routine of business. Since the exception to the hearsay rule is predicated upon the reliability of such routine, this showing is critical and indispensible.

The appellee contends that the Act eliminates the necessity of establishing the propriety of the test, since the Act presumes the laboratory procedure to be competent. Such a presumption is not consistent with the purposes of the Act. In Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19 (1953), certain slides used in a laboratory analysis were held to have been properly received only after a showing that they were of the type normally used in a procedure regularly followed by the hospital, and that proper methods of analysis were used which were free from error. Entries made as regular routine matters in laboratory notebooks cannot act to prove themselves merely upon a showing by the recorder that he made the entry. Teter v. Kearby, 169 F.2d 808, 816-817, 36 CCPA 706 (1948). In this case, not only was no showing made concerning the testing procedures, but no showing has been made concerning the precautions, if any, taken between the taking of the blood sample at the scene of the accident and its course of travel to the hospital laboratory. The regularity of the making of the entry of the results of the blood test cannot in bootstrap manner serve as a presumption that the blood was properly taken from the decedent and properly transferred to the hospital.

“The legislative history of the Business Records Act clearly shows that it was not the intent of the draftsmen to make admissible all evidence, no matter how incompetent or irrelevant, merely by virtue of the fact that it appeared in a record made in the regular course of business.” Gordon v. Robinson, 210 F.2d at 196.

In admitting the hospital report, the District Court failed to insist upon a showing of relevance and competence, and the obvious prejudicial effect of this ruling alone would require reversal, even if the error had not been compounded by the admission of this report in two different forms, as hereinafter discussed.

The District Court’s order also admitted a coroner’s report which contained the following entry:

“16 June 66-Report received from Mercy Hospital Portsmouth, Clinical Lab on specimen of blood of Mr. Gray sent by me by State Patrolman Baughman. Test requested-Blood alcohol. Result: 459 mg ethyl alchol [sic] per 100 cc blood.
Paul Jones, M.D.”

This entry incorporates the blood test report discussed above, and is as inadmissible as is the original report. If we must reject the report itself as incompetent, we cannot permit its admission because it is contained in another report.

This coroner’s report also contains statements from the truck operator and the relief driver concerning their observations just prior to the accident. These witnesses testified at trial, and there appears to be no reason why these statements should have been admitted in hearsay form. A misplaced reliance on the Federal Business Records Act does not serve as a substitute for essential elements of competency.

The District Court’s order also admitted the report of the investigating Highway Patrolman. This report also contained a hearsay reference to the blood test; as noted above, a reference to the Federal Business Records Act does not serve to make such hearsay evidence admissible. The report also contained the entry: “Coroner Jones stated this test indicated intoxication.” The obvious problems created by this kind of triple hearsay do not require further discussion in light of our conclusions concerning the other two documents. The testimony of the Patrolman which would be admissible would in-elude only his personal observations from his arrival on the scene of the accident about forty minutes thereafter, and the conclusions which, as an expert in the field of accident investigation, he might draw therefrom. Such observations could not, of course, include the amount of alcohol in the decedent’s blood.

In summary, the contents of the three reports under consideration constitute opinions, conclusions and conjecture which would only be admissible directly from a witness after a proper foundation has been laid; they do not become automatically admissible simply because they have been written down in an official report.

In 1944, this Court held that the “Shop Book Act,” the precursor of the present Act, was enacted for the purpose of eliminating the technical requirement of proving the authenticity of business records and memoranda by the testimony of the maker.

“The mere fact that the page offered in evidence is taken from a business file and is otherwise proved in compliance with § 695 does not establish its competency. . . . Section 695 in no way repealed the ordinary requirements of relevancy and competency. The District Court . . . should have excluded the hearsay and other incompetent evidence.” Schmeller v. United States, 143 F.2d at 550.

The hearsay portions of these exhibits can easily be deleted by the District Court; the ruling that these exhibits should be admitted in full and for all purposes was unnecessarily inclusive.

An appeal is also taken from the admission over objection of the patrolman’s opinion as to the cause of the accident. When asked on deposition as to his opinion as to the cause of the accident, based upon his observations of the scene of the accident and the facts uncovered during his investigation, the patrolman stated that the main cause of the accident was that the decedent was driving without his headlights and while under the influence of alcohol. The law of Ohio is that an expert witness is permitted to express his opinion as to the ultimate fact in issue only when the fact to be determined by the jury depends upon the interpretation of scientific facts which are beyond the experience, knowledge or comprehension of the jury. McKay Machine Co. v. Rodman, 11 Ohio St.2d 77, 228 N.E.2d 304 (1967); Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255 (6th Cir. 1961); Shepherd v. Midland, 152 Ohio St. 6, 87 N.E.2d 156 (1949). In addition, Ohio law does not permit an expert opinion to be based upon the opinion of others, either in evidence or not in evidence. Zelenka v. Industrial Comm’n., 165 Ohio St. 587, 138 N.E.2d 667 (1956); see also: Taylor v. B. Heller & Co., supra. This opinion, based upon the hearsay opinion of intoxication of the coroner’s, which itself was based upon the results of a blood test which was not properly admitted should have been excluded from the patrolman’s deposition when it was read to the jury.

The judgment of the District Court is reversed, and the cause is remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge: CLARK, Circuit Judge BY THE COURT:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.
    No. 71-1091.
    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1972.
    Rehearing En Banc Granted March 28, 1972.

      Mel S. Friedman, W. B. (Bennie) Housen, Jr., of Maley & Friedman, Will Gray, Houston, Tex., for defendant-appellant.
    Eldon B. Mahon, U. S. Atty., Wm. F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., Frank D. McCown, Asst. U. S. Atty., Fort Worth, Tex., for plaintiffappellee; Henry E. Petersen, Asst. Atty. Gen., Larry E. Butcher, Atty. Dept, of Justice, Washington, D. C., of counsel.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   THORNBERRY, Circuit Judge:

This is an appeal from the conviction of William Groner on an indictment charging him with two counts of knowingly using a common carrier in interstate commerce to transport a quantity of obscene books, in violation of Title 18, U.S.C.A., Section 1462.

Groner alleges numerous errors in the district court’s judgment. We find it necessary to discuss only two of these allegations and to render a decision on only one.

The government at trial introduced evidence that Groner caused the books in question to be shipped in interstate commerce from North Hollywood, California to Dallas, Texas. At the close of its case, the government presented four of the books — Oral Orgies, Eager Mouths, First in Line, and Blood Orgy — to the jury for their perusal. No expert testimony or other evidence was presented to show that the books were themed to appeal predominately to the prurient interests of its readers, went substantially beyond the community limits of candor in their description of sex and nudity, or were devoid of all redeeming social value. Although Groner presented testimony of experts in the fields of literature and psychology to the effect that none of these characteristics could be applied to the books, the jury nevertheless chose to convict him.

Groner contends that (1) the books are not obscene as a matter of law, and (2) the books themselves did not provide sufficient evidence of obscenity to sustain the jury verdict.

There remains little doubt that this Court is obligated to make an independent evaluation on the issue of whether the material in question is obscene. The issue of obscenity involves the application of first amendment rights to the printed word. The courts, not the reasonable jury or even the majority of reasonable men, are responsible for the protection of freedom of speech. The substantial evidence test, usually employed to reinforce jury verdicts, thus cannot be utilized to apply these constitutional doctrines.

We have little trouble in finding the books involved in the instant case to be vile, filthy, disgusting, vulgar, and, on the whole, quite uninteresting. We do, however, have difficulty in equating these adjectives with the constitutional definition of obscenity.

Recent Supreme Court opinions furnish little guidance in this area. There exists between Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), a wide chasm of confusion, which is accentuated by frequent Supreme Court reversals in obscenity cases, citing only Redrup. Much of the material in these cases appears to be more disgusting than that involved in the instant case; some of the material found in the past to be obscene appears infinitely more tasteful, if such an adjective can be allowed in this area of the law.

There remains, however, this Court’s determination of whether the particular material involved in the instant case is obscene and hence constitutionally unprotectible, as that term is interpreted by the Supreme Court. We are fully aware of the test enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957):

1. Whether the materials, taken as a whole, appeal primarily to the prurient interests of the average adult;
2. Whether the materials are patently offensive because they go substantially beyond the customary limits of candor in their description of sex and nudity; and
3. Whether the materials are utterly without redeeming social value.

In spite of indications to the contrary in Redrup, we believe this test was clearly sustained in the Supreme Court’s most recent pronouncement in United States v. Reidel, supra, wherein the Court stated, “Roth has not been overruled. It remains the law in this Court and governs this case.” 402 U.S. at 354, 91 S.Ct. at 1412.

Knowing the legal test for obscenity and applying the same in light of recent Supreme Court decisions, however, are two entirely different matters. We are completely incapable of applying the test in the instant case. Without some guidance, from experts or otherwise, we find ourselves unable to apply the Roth standard with anything more definite or objective than our own personal standards of prudence and decency, standards which should not and cannot serve as a basis for either denying or granting first amendment protection to this or any other literature.

The necessity for expert testimony to establish the Roth elements was first explored in United States v. Klaw, 2d Cir. 1965, 350 F.2d 155. In Klaw, involving books and pictures much more graphically depraved than the books involved in the instant case, the government chose to rest its case largely on a showing of the material itself insofar as proof of their obscene nature was concerned. The Second Circuit, recognizing that the defendant out of apparent necessity had made no claim that the material in question had any redeeming social, artistic or literary value whatsoever, nevertheless held that the lack of expert testimony on the issues of prurient appeal and community standards was fatal to the prosecution. In so doing, the Court reasoned as follows:

In this case, however, the only predicate for any conclusion about prurient appeal was the material itself, as if res ipsa loquitur. The jurors were, therefore, left to speculate. They were invited to behold the accused material and, in effect, conclude simply that it is undesirable, it is distasteful, it is disgusting. Knowing perhaps that they would not be interested in obtaining more of the material they might wonder why anyone else would, and conclude that the only answer is “prurient appeal.” Because the jury was given no basis for understanding exactly how and why the material appeals to its audience, whether deviate or average person, it may too readily supply an explanation — “prurient appeal.” Even if the jury did not consist of twelve carefully selected Anthony Comstocks, it might well believe that the predominant appeal of certain acknowledged works of art, sculpture and literature found in all our well-known museums and libraries would be to the prurient interest of the average person, or perhaps someone else. But if that be so, can we allow the censor’s stamp to be affixed on the basis of an uninformed jury’s misconceptions ?

350 F.2d at 167.

Even with adequate proof under the average man test, there might still be problems, for the jury was charged to consider the material from the standpoint of the average man in the nation as a whole. We very much doubt whether twelve random New Yorkers can make such a judgment without being further informed about the “common conscience of the nation,” if there be such a thing.

350 F.2d at 168 n. 14.

Although there is much conflict on this issue, the Second Circuit’s view has been followed by some courts. For example, in In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968), the California Supreme Court, finding expert testimony to be required on the issue of community standards, reasoned as follows:

Finally, even if the jury should be deemed to be a metaphysical embodiment of the “community,” and therefore intrinsically cognizant of community standards, proof of community standards would nevertheless be indispensable to effective appellate review. An appellate court must reach an independent decision as to the obscenity of a material. . . . Since an appellate court certainly does not in any sense compose a cross-section of the community, it cannot effectively carry out this function in the absence of evidence in the record directed toward proof of the community standard.
We cannot assume that jurors in themselves necessarily express or reflect community standards; we must achieve so far as possible the application of an objective, rather than a subjective, determination of community standards. An even-handed application of the criminal law, even with evidentiary guidance . . ., is sufficiently difficult in an area so confusing and intricate as obscenity. To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror. . . . “[C]ommunity standards . . . can . . . hardly be established except through experts. . . . There is no external measuring rod for obscenity. Neither, on the other hand, is its ascertainment a merely subjective reflection of the taste or moral outlook of individual jurors or individual judges. . . . Their interpretation ought not to depend solely on the necessarily limited, hit- or-miss, subjective view of what they are believed to be by the individual juror or judge. It bears repetition that the determination of obscenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of ‘contemporary community standards.’ ”

See also Luros v. United States, 8th Cir. 1968, 389 F.2d 200.

The government contends this position ignores this Circuit’s holding in Kahm v. United States, 5th Cir. 1962, 300 F.2d 78. There the Court stated:

It is plain to us that when the jury was instructed by the trial court in language such as that approved by the Supreme Court in the Roth case, it was fully capable of applying those standards and that charge to the materials shown to have been mailed here. Nothing is more common than for a jury in a case involving charges of negligence, as for example negligent homicide, to determine whether the proven conduct measures up to the standards of a reasonably prudent man. We think it may fairly be said that no amount of testimony by anthropologists, sociologists, psychologists or psychiatrists could add much to the ability of the jury to apply those tests of obscenity to the materials here present.

The Court in Kahm, however, was dealing with a circular composed entirely of isolated seedy excerpts from numerous racy novels, many of which had been found not to be obscene by the courts. The material there was graced with no plot, no character development, and no exemplification of independent literary efforts.

Involved in the instant case are entire books endowed, albeit tenuously, with all the above-mentioned elements. The Court expressly excepted such a case from the principles enunciated there:

It must be recalled that we are not dealing here with the problem of what happens when a defendant is charged with improper mailing of an entire book in which the literary, artistic or social values of the work must be considered and weighed against certain off-color passages to determine whether the latter are so dominant as to outweigh the other features of the work as a whole. In a case of that kind expert testimony could well be of some value to the jury. .

300 F.2d at 84 (emphasis added).

The logic of this position is compelling. It becomes even more so when the possibility is considered that national, rather than state, community standards will be utilized to apply the Roth test. Jurors in an obscenity case are called upon to determine contemporary community standards and must then compare the materials in question to determine whether they go “substantially beyond the limits of candor” in describing sex or nudity. Each juror is an individual —separate in his morals, experience and taste. The only standards which govern his conduct and his judgment are his own, not those of the community as a whole, whether state-wide or national. Although such unfettered discretion is acceptable in determining questions of negligence, probable cause and intent, it has no place in determining whether material is to be armed with first amendment protection. We can come to no other conclusion under the circumstances.

This Court finds itself in the same position as that of the jury in such a case. We cannot take judicial notice, without even a scintilla of evidence, of what constitutes the community standard of decency at this or any other time. If such a standard exists at all, we would expect that it would be in a constant evolutionary and even revolutionary flux, the fact of which militates against our exercising uninformed judgment at any particular point in time. At best it would be a matter of pure chance as to whether we as a Court, or as individuals left to our own devices and without the aid of evidence, could determine the correct standard.

We confess that our reading is confined to books not at all analogous to the material involved in the instant case. Although we have always recognized the existence of such material, we have not in the past had occasion to examine it closely. This is, however, not to say that such literature has not found a certain modicum of acceptance in the community as a whole. We have only to peruse casually the titles and subject matter of many of the works found not to be obscene by the courts in recent years to see that standards of decency, or indecency, have passed us by.

Feeling as we do that we cannot determine in a vacuum what the people of Dallas, Texas, the State, or the Nation consider as their limit of candor and their capacity for trash, we find ourselves completely incapable of ruling on this issue.

Moreover, we think evidence of the materials’ prurient appeal was necessary. The material in the instant case does not appeal to the prurient interests of this Court. Indeed, we have trouble imagining its appealing to the prurient interests of any normal, sane, healthy individual. It is just too disgusting and revolting to be so classified. To allow a case to go to a jury of laymen under such circumstances is to invite the jurors’ equating patent offensiveness with prurient appeal and aiding suppression simply on the basis of speculation and suspicion about the prurient appeal of material to some known, undefined person whose psyche is not known. The possibility, even the probability, that jurors would be uncommonly sanctimonious or Puritanical in such a state of affairs should be obvious to anyone who has noted the numerous defeats of jury censors at the hands of the appellate courts.

In short, we believe, as stated by the Second Circuit in Klaw:

The courts may have opened the floodgates for horror and filth, but if they are to be closed it should be done by the careful drafting of proper laws by our duly elected representatives, and not by a combination of zealous governmental inspectors, prosecutors, and uninformed juries. Then the potential contributors to our culture may have some slight notion of the guidelines and the risks.
Unless there be this protection, a witch hunt might well come to pass which would make the Salem tragedy fade into obscurity. Having in mind the alternatives of jail or freedom, courts must be aware of the facts of the “held-not-to-be-obscene” or “approved” Cases, and ensure that the proof is sufficient to allow a fact finder to set this case apart from them. Otherwise it would be altogether too easy for any prosecutor to stand before a jury, display the exhibits involved, and merely ask in summation: “Would you want your son or daughter to see or read this stuff?” A conviction in every instance would be virtually assured.

350 F.2d at 170.

We do not view our failure to determine whether this material is obscene in the absence of expert testimony as an abdication of our judicial responsibility in this area of the law. Rather, it is the result of our realization that under the first amendment majority censors of one branch of our government should not and cannot be replaced by the minority suppressors of another branch, limited in their discretion only by their personal concepts of morality and taste.

We wish to make it perfectly clear what we hold, and what we fail to hold today in the instant case. We have expressed no opinion on the issue of whether the material involved here is or is not obscene. In fact, our inability to do so is the basis for our holding that expert testimony is required on the elements of obscenity in order to furnish juries and this Court with an objective basis for deciding on the issue of first amendment rights.

We are not prepared to go so far as to say that introduction of such evidence is necessary on all the elements of obscenity in all such cases. In some circumstances, the questioned material might be so terribly depraved and so lacking in candor that anyone would know without question that the community norm had been forsaken in the writer’s quest for sexual sensationalism. Moreover, under some circumstances, the appeal of the material could only be to the prurient interests of its readers, such as that found in Kahm v. United States, supra. We hold only that the material involved in the instant case does not reach this “plateau” of degradation.

Thus, until the Supreme Court is able to formulate objective standards in this subjective area of the law, this Court will at least seek to base its judgment as much as possible on objective facts. The government’s burden of proof in these prosecutions necessitates its furnishing these facts to the Court.

Because of our holding that the government has failed to carry its burden on the three elements of obscenity enunciated by the Supreme Court in Roth, we reverse the judgment of conviction and remand the cause for a new trial.

CLARK, Circuit Judge

(concurring):

Judge Thornberry’s opinion is an excellent and absolutely accurate summation of the law as announced by present federal court decisions fixing (or more aptly, failing to fix) the respective limits of “free press” rights under the First Amendment and unprotected publications which exploit sexuality. However, as his opinion convincingly demonstrates, the judiciary has created a quagmire. Our recognition that a jury must have the opinion evidence of obscenity “experts” may very well compound, rather than aiding in solving, the dilemma.

If I were not bound by these mutable precedents, I would unhesitatingly abandon the “national standard” concept and return the problem of what is unprotected hard-core prurience to the fifty individual laboratories — the States— which make up our united republic, with every confidence that they will protect federal Constitutional guarantees better than we. The chance that the traditional blue-nosed, puritanical Boston censor will ban a publication that ought to be protected, is far outweighed in my mind by the potential harm of the progeny which may follow a judicial foisting of the permissive licentiousness thought by some “expert” to be the majority standard elsewhere upon the citizens of that city.

One more observation and I am done. I understand that the First Amendment protects publications and talk and only limited forms of action. But, I cannot fathom the logic of a legalism that asserts that this Amendment, which became a part of our Constitution in 1790, was ever intended, then or now, to mean that the several States may punish a nude female dancer in a private club who climaxes her performance by exposing her sex organs for indecent exposure while at the same time protecting an entrepreneur who films the illegal scene and sells it to the adult public at the same club. If reason is really the life of the law, as I conceive it to be, both classes of action ought to be State responsibilities. That is one function the simultaneously proposed and ratified Tenth Amendment would perform if we would but let it.

Reluctantly, I concur.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk shall set a briefing schedule for the filing of supplemental briefs.

Judge GOLDBERG dissents to submission on briefs without oral argument.

      . The statute provides in pertinent part: Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
      (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
      (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or tiling capable of producing sound Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter. 38 U.S.C.A. § 3402.

      . Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Haldeman v. United States, 10th Cir. 1965, 340 F.2d 59; Kahm v. United States, 5th Cir. 1962, 300 F.2d 78; In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968); Hudson v. United States, 234 A.2d 903 (D.C.Ct.App.1967).

      . Burgin v. South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971); Bloss v. Michigan, 402 U.S. 938, 91 S.Ct. 1615, 29 L.Ed.2d 106 (1971); Childs v. Oregon, 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed.2d 542 (1970); Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970); Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970); Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970); Cain v. Kentucky. 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970); Carlos v. New York, 396 U.S. 119, 90 S.Ct. 395, 24 L.Ed.2d 303 (1969); Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1968); Felton v. City of Pensacola, 390 U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220 (1968); Robert-Arthur Management Corp. v. Tennessee ex rel. Canale, 389 U.S. 578, 88 S.Ct. 691, 19 L.Ed.2d 777 (1968); I. M. Amusement Corp. v. Ohio, 389 U.S. 573, 88 S.Ct. 690, 19 L.Ed.2d 776 (1968); Chance v. California, 389 U.S. 89, 88 S.Ct. 253, 19 L.Ed.2d 250 (1967); Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967); Conner v. City of Hammond, 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47 (1967); Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967); Schackman v. California, 388 U.S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316 (1967); Mazes v. Ohio, 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315 (1967); A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314 (1967); Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967); Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967); Avansino v. New York, 388 U.S. 446, 87 S.Ct. 2093, 18 L.Ed.2d 1308 (1907); Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L.Ed.2d 1306 (1967); Cobert v. New York, 388 U.S. 443, 87 S.Ct. 2092, 18 L.Ed.2d 1305 (1967); Ratner v. California, 388 U.S. 442, 87 S.Ct. 2092, 18 L.Ed.2d 1304 (1967); Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303 (1967); Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302 (1967).

      . In Redrup, the Supreme Court stressed:
      In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles .... In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to .avoid exposure to it . . . . And in none was there evidence of the sort of “pandering” which the Court found significant in Ginzburg [v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31].....
      386 U.S. at 769, 87 S.Ct. at 1415.
      Appellant would have us infer from this language that there can be no conviction on the basis of obscenity without the presence of one of these elements — danger to juveniles, force upon unwilling adults, or pandering. No such holding can be gleaned from Redrup. Careful analysis of the Court’s enumeration of the Justice’s individual views on the standard reveals that the lowest common denominator for reversal of obscenity convictions remains the Roih standard, despite its minority status.

      . Recent court opinions have adhered to this position. E. g., Huffman v. United States, D.C.Cir. 1971, 470 F.2d 386 [10 Cr.L.Rptr. 2076, October 7, 1971]; Hoffman v. Carson, 250 So.2d 891 (Fla.1971); Hoffman v. Dickinson Operating Co., 468 S.W.2d 26 (Mo.1971); Court v. Wisconsin, 51 Wis.2d 683, 188 N.W.2d 475 (1971).

      . In Klaw, the court described the material as follows:
      These “bondage” booklets usually contain some twenty to twenty-five photographs or crude drawings of females— some scantily clad, some tightly trussed, and all voluptuous — subjecting other women and men to various tortures and indignities, including violent and forcible deformation of the body, while being gagged, fettered and bound in bizarre postures. The booklets bore such titles as “Sorority Girls Stringent Initiation,” “Female Doctor Forced into Bondage,” “Girls Concentration Camp Ordeals,” “Dominating Woman Turns Man into Girl,” “Men in the Ladies Room,” and the like. A text in each booklet described in a puerile and asinine fashion the activity depicted in the drawings. One booklet entitled “The Devil of Yocherwalden” pictures female “Gazi” guards subjecting female prisoners to brutal tortures at the direction of the “Gazi” commandment “Elsi Aehstunk.” The captives and tormentors are drawn with exaggerated female physical characteristics, clothed in tight-fitting garments, wearing black leather shoes with very high heels, and posed in unreal positions. There were also photographs of “Fighting Girls,” corset and high heel shoe scenes, and girls in rubber apparel. Photographs offered for sale were in many instances taken from motion pictures said to have been recently released, such as “Blood of the Vampire,” “Slaves of Carthage,” and “The Mystery of the Black Whip.” Amateur “bondage” photographs were often solicited. Bulletins published by Nutrix advertised its publications in various bondage series. All these materials are described to us as being “sado-masochistic,” and we are referred to Krafft-Ebing’s Psychopathia Sexualis for further elucidation.
      350 F.2d at 157.

      . Compare City of Newark v. Humphres, 94 N.J.Super. 384, 228 A.2d 550 (1967) and City of Chicago v. Kimmel, 31 Ill.2d 202, 201 N.E.2d 386 (1964) with Dunn v. Maryland State Bd. of Censors, 240 Md. 249, 213 A.2d 751 (1965).
      The government contends that the Second Circuit has since refused to follow the principles in Klaw. In United States v. Wild, 2d Cir. 1969, 422 F.2d 34, the Second Circuit did affirm a conviction based only on the introduction of the material itself. The material involved there, however, was composed of color slides depicting numerous erotic acts. The court, in its citation of and quotation from appellate and Supreme Court opinions, emphasized that they were not dealing with textual matter in which the meaning and effect of the whole would be relevant. The ease can thus be compared with this Circuit’s opinion in Kahm v. United States, 5th Cir. 1962, 300 F.2d 78. See infra note 8 & accompanying text.

      . The Court described the material involved there as follows:
      Included under the heading of “Sack’s Book Reviews” are a number of brief extracts purportedly taken and quoted from books by named authors. These are not book reviews in the ordinary sense but merely quotations of particularly salacious passages in the books. One is a passage purportedly lifted from tlie book “Peyton Place” by Grace Metalious. Here are the passages containing a vivid description of the accomplishment of sexual intercourse between a boy and a girl: (Both were lying naked on the ground near his automobile. At first she teases him by running away and getting into the automobile, and laughing at him when she turns the car light on him to outline his nakedness. He pulls on his trousers, climbs into the car and starts the car engine when the girl turns off the ignition and immediately changes her mood to one of endearment and seduction, running her hands over his body and seeking his kisses. She then leads Mm down to the beach where he followed with the car robe on which they fall and embrace. What then happens is described by the author in words of impatient urging of immediate ravishment;— words which vividly portray a breathless, panting, concupiscent, cacoethes for consummation on the part of the girl, and savage eagerness on the part of the boy. Their lustful words, their sensuous body embrace are told with realistic and dramatic vividness to the point of passionate ecstasy that immediately precedes coitus.) Wo take it for granted that a motion picture which portrayed the consummation of a sexual act would be obscene. This mailed portion of an extract from Peyton Place is no less obscene in the sense of the definition of the Roth case.
      The extract from Peyton Place was accompanied by other so-called “book reviews” which were merely salacious extracts from other named books. One of these salacious extracts was taken from a book entitled “Out For Kicks.” Our description of the obscene passages from Peyton Place fits this one precisely, as it does one from a book entitled “The Immortal” and still another from a purported “Nine Days to Mukalla.”
      Other material enclosed in the envelopes described in counts 8 and 9 may well be classified as hard-core pornography, a term we discuss hereafter. Among the so-called book reviews is a purported extract from a book entitled “The Tribe That Lost Its Head.” This is a description of a savage tribal rite which the extract characterizes as loathsome and degraded. Another purported extract is from a book called “Intimacy” ; it describes with unblushing detail both homosexual activity and masturbation. From “The Bitter Weed Path” and “Shadows of Shame” are taken descriptions of homosexual embraces. Enclosed in the same parcel of material is a discussion of “Six Tortures,” including, with numerous other' descriptions of revolting procedures, an account of “punitive masturbation” and “gang rape.” Also in the mailed material is a copy of what was referred to in the advertisement as “Formula 14.” This is an extended description of how a man may go about meeting a woman, gradually awakening her interest, and finally seducing her. 300 F.2d at 82-83.
      Without going into equal detail, we deem it sufficient to point out that the material involved in the instant case is not even remotely analogous.

      . See Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); United States v. Klaw, 2d Cir. 1965, 350 F.2d 155 (good discussion of possibility that national standard is required). Contra Miller v. United States, 9th Cir. 1970, 431 F.2d 655; California v. Luros, 4 Cal.3d 84, 92 Cal.Rptr. 833, 480 P.2d 633 (Cal.1971); Mitchum v. Tennessee, 10 Crim.L.Rptr. 2079 (Tenn.Crim.App. 1971); Court v. Wisconsin, 51 Wis.2d 683, 188 N.W.2d 475 (Wis.1971).

      . We find ourselves in much the same position as that of the trial judge in United States v. Reidol, D.Cal., No. 5845 Crim., October 7, 1971, as he stated:
      1 haven’t even seen an “X” rated movie. I occasionally may look at a Playboy magazine, hut it might be in a barbershop, and that’s a rare situation.
      So though I personally would find that pamphlet to be obscene, my personal feelings are not to govern in this area which is an important area, because we are running into the Bill of Rights, the First Amendment, freedom of expression. It is a very, very difficult area, and I know today that you can walk down the street into one of these adult hook stores and buy all kinds of publications that are being sold. íáo I don’t feel that I am any judge of what is acceptable in the community today. . .

      . Pinkus v. Pitchess, 9th Cir. 1970, 429 F.2d 416, aff’d 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970) (film depicting woman in act of masturbation); Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (Lurid Sinner; Sin Crop; Nifties; Peek-A-Boo, Number 4); Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970) (Business as Usual, Lady Susan’s Cruel Lover, The Way of a Man With a Maid); Mazes v. Ohio, 388 U.S. 453, 87 S.Ct. 2105 18 L.Ed.2d 1315 (1967) (Orgy Club); A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314 (1967) (Sin Hooked, Bayou Sinners, Lust Hungry, Shame Shop, Fleshpot, Sinners Seance, Passion Priestess, Penthouse Pagans, Shame Market, Sin Warden, Flesh Avenger); Books, Inc. v. United States, 3SS U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967) (Lust Job); Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303 (1967) (Bondage Boarding School, English Spanking School, Bound and Spanked, Travelling Saleslady Gets Spanked, Bound to Please, Heat Wave); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) (Lust Pool, Shame Agent).

      . Many believe that there can be no objectivity in the obscenity area. One commentator has thus stated:
      There is no definition of the term [obscenity]. There is no basis of identification. There is no unity in describing what is obscene, or in prosecuting it. There is little more than the ability to smell it. Albert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 47 (1938).
      This Court, however, will continue to search for an objective criterion for determining what is obscene and refuse to depend on its nose for judgment.

      . See our divided opinion in United States v. Williams, 447 F.2d 1285 (5th Cir. en banc 1971).

      . See Hoffman v. Carson, 250 So.2d 891 (Fla.); Appeal dismissed for want of a substantial federal question, 404 U.S. 981, 92 S.Ct. 453, 30 L.Ed.2d 365 (1971).


text:
    In the Matter of CHARMAR INVESTMENT CO., Alleged Bankrupt. CITY NATIONAL BANK & TRUST CO. et al., Petitioners-Appellees, v. CHARMAR INVESTMENT CO., Alleged Bankrupt-Appellant.
    No. 72-1503.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 28, 1972.
    Decided and Filed March 22, 1973.

      John E. Palcich, Columbus, Ohio, for alleged bankrupt-appellant.
    Bradley Hummel, Columbus, Ohio, for petitioners-appellees; R. T. O’Brien, Folkerth, Calhoun, Webster, Maurer & O’Brien, Columbus, Ohio, on brief, for Charles L. Adrian; Gingher & Christensen, Columbus, Ohio, on brief, for Marlen Radbill; David H. Putnam, Columbus, Ohio, on brief, for City National Bank & Trust Co.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   PECK, Circuit Judge.

On May 3, 1971, a creditors’ petition for the involuntary bankruptcy of Char-mar Investment Company, a small closely-held corporation, was filed in the District Court. It was contended that appellant conveyed its major asset to two shareholders and officers of appellant for insufficient consideration, thereby constituting a preference to the grantees. On June 25, 1971, the Referee granted a motion to dismiss the petition for failure to sufficiently allege an act of bankruptcy. On July 6, 1971, the Referee ordered the dismissal set aside and permitted the filing of an amended petition. At the same time, the Referee denied a motion to dismiss the amended petition on the grounds that it merely paraphrased Section 60 of the Bankruptcy Act (11 U.S.C. § 96), which defines a preferential transfer. Jurisdictional questions subsequently developed and, in April 1972, the District Court conducted a jurisdictional hearing and found the appellees qualified as creditors. This appeal followed.

Charmar Investment Company was started by appellees Adrian and Radbill to operate car washes. Later, realizing the business was in trouble, they sold their shares of stock to a Mr. Zingarelli for one dollar in accordance with the terms of a written agreement of October 1969. .A provision of that agreement required Charmar to issue non-interest bearing promissory notes to appellees Adrian and Radbill in the sum of $14,802.48, payable at stated amounts and times over the next four years. After execution of the agreement, Zingarelli became President of Charmar and in that capacity he issued notes to Adrian and Radbill. Adrian and Radbill now claim that consideration for these notes was the deferment of their claims on Charmar for unpaid services, e. g., salary and expenses, and their oral agreement to remain personally liable on company debts for one year after the sale. These notes, they contend, give them creditor status to place Charmar in bankruptcy.

It also appears that Adrian and Rad-bill had obtained a $60,000 loan in May 1968 from City National Bank & Trust Co. of Columbus, Ohio. Although the original note is not in the record, it allegedly, without challenge, was signed by the corporation and by Adrian and Rad-bill individually, and within a year, all of the loan except for $9,000 was repaid and the bank agreed to extend the loan balance through a series of ninety-day notes. When the September 1970 note came up for renewal in December 1970, appellees Adrian and Radbill were apparently mindful that their obligation of October 1969 to guarantee the notes for a one-year period expired in October 1970 and refused to guarantee the proposed renewal note. The Bank then declined to renew the note without the guarantees. Thereupon in May 1971, the petition in bankruptcy was filed.

Section 24 of the Bankruptcy Act (11 U.S.C. § 47) provides that interlocutory orders in proceeding's in bankruptcy are appealable. The Act makes the distinction between “proceedings” and “controversies”, the latter being non-appealable. However, the distinction has always been obscure. In re Imperial “400” National, Inc., 391 F.2d 163, 168 (3rd Cir. 1968). Generally, in this context “controversies” involve disputes between trustees and third parties over title to the bankrupt estate’s property. 2 Collier on Bankruptcy § 24.28 (14th ed. 1971) (and cases cited therein). The order here concerns a question between the bankrupt and a creditor in the ordinary course of the administration of the bankrupt’s estate and therefore constitutes a “proceeding in bankruptcy.” However, not every interlocutory order entered in a “proceeding in bankruptcy” is automatically appealable. The order must dispose of some asserted right. Therefore, an order which is not “a formal exercise of judicial power affecting the asserted rights of a party” is not appealable. 2 Collier on Bankruptcy § 24.39 (14th ed. 1971); see, also, Cope v. Aetna Finance Company of Maine, 412 F.2d 635, 639 (1st Cir. 1969). Here the District Court has exercised such power regarding an issue in dispute between the parties, i. e., qualification as creditors, and thus the order may be considered appealable.

A question also arises as to whether the District Court has jurisdiction to consider a proposed amendment to the involuntary petition after a motion to dismiss that petition has been granted. The original petition was filed on May 3, 1971, and was dismissed on June 25, 1971, for insufficient allegations to justify bankruptcy. In the order of dismissal, the Referee noted that a motion to amend the petition had been presented and filed, and ordered a hearing on the motion for July 1, 1971. On July 6, 1971, the Referee granted a motion to amend the petition.

Kroell v. New York Ambassador, 108 F.2d 294 (2nd Cir. 1939), held that omitting leave to amend from an order which dismissed an original involuntary bankruptcy petition for insufficiency did not deprive the bankruptcy court of its jurisdiction to allow a later amendment. Even assuming but without deciding that the notation in the brder does not constitute leave to amend, it is clear that the bankruptcy court has jurisdiction in view of its general equity powers to set aside an order dismissing the petition for defects in the pleading and later to reinstate the proceedings to permit an amendment of the pleadings. 2 Collier on Bankruptcy § 18.24 (14th ed. 1971).

Appellant first claims that (1) it was improper for the Court to admit the amended petition more than four months after the alleged act of bankruptcy and (2) the amended petition contained insufficient facts to allege a bankruptcy. We find that Section 39(c) of the Bankruptcy Act disposes of these claims. Amended in 1960, the Act provides that a petition for review, or a petition to extend the time for filing a petition for review, must be filed within ten days after entry of a referee’s order. The 1960 amendment provided a clarification and made compulsory the ten-day limitation. It is clear that the intent was to provide finality to a referee’s order unless there was timely direct attack. Since the amendment was enacted, courts have required strict compliance. Appellant has failed to file such a petition for review within the time specified. In fact, the record does not reveal that any petition for review has ever been filed. An appeal to this Court cannot be substituted for a petition for review, and consequently, appellant’s claims must be rejected.

Appellant also contends that the admission of certain evidence constituted error. Four days after the close of the jurisdictional hearing, the District Judge advised counsel that he proposed to admit the $9,000 ninety-day notes which were executed in November 1969, March 1970 and June 1970. Appellant requested a hearing on the matter and on April 19, 1972, a second hearing was held. At the hearing appellant objected to the admission of the notes based on the absence of the original $60,000 note which it felt was necessary to fully understand the entire transaction. It asked for, and was refused, additional time to subpoena the original note. The Court then issued its findings that same day. On April 24, 1972, the Court issued an order stating that its opinion was not dependent upon the evidence in question but offered appellant the opportunity to challenge the evidence prior to trial. Appellant now complains that the notes were produced without sworn testimony and thus their admission constituted a denial of due process.

We agree with appellee that the evidence in question was not necessary in order for the District Court to reach its conclusion. It is clear that both Radbill and Adrian obligated themselves personally for a period in excess of one year after the October 1969 purchase agreement for the obligation of appellant, and thus may in fact be required to pay such obligation in the event the alleged bankrupt is unable to do so. The September 1970 note and the proffered December 1970 note establish that fact. Testimony by an employee of the Bank indicates that the December 1970 note was rejected “primarily because Messrs. Adrian and Radbill had refused to sign individually on our new note which was the way it was set up, so consequently, we wouldn’t accept.” Both Exhibit B, entitled Schedule of Debts, and Exhibit C, entitled Schedule of Payments, to the October 1969 purchase agreement list a $9,000 note outstanding to City National Bank. Although it would be expected that admission of the original note would clarify the situation with reference to the $9,000 note, we do not find its admission as necessary to the determination of the status of Adrian and Radbill as creditors. We also find that the admission of the November 1969, March 1970 and June 1970 notes, without the laying of a proper foundation, is error. However, we do not conclude the admission had prejudicial effect.

Appellant also disputes the District Court’s findings that appellees Adrian and Radbill qualify as creditors under Section 59(b) of the Bankruptcy Act (11 U.S.C. § 95(b)). That section provides as follows:

“(b) Three or more creditors who have provable claims not contingent as to liability against a person, amounting in the aggregate to $500 in excess of the value of any securities held by them, or, if all of the creditors of the person are less than twelve in number, then one or more of the creditors whose claim or claims equal that amount, may file a petition to have him adjudged a bankrupt; but the claim or claims, if unliquidated, shall not be counted in computing the number and the aggregate amount of the claims of the creditors joining in the petition, if the court determines that the claim or claims cannot be readily determined or estimated to be sufficient, together with the claims of the other creditors, to aggregate $500, without unduly delaying the decision upon the adjudication.”

The question before us then is whether the October 1969 notes of the appellant, arising from the October 1969 purchase agreement and made payable to Adrian and Radbill, qualify them as “creditors who have provable claims not contingent as to liability. . . .” It is clear that the ninety-day notes will not support a finding of creditor qualification under Section 59(b). The September 1970 note remains outstanding and, as co-signers, Adrian and Radbill are liable to the Bank for the note. They are considered sureties and their claims would be considered contingent. 3 Collier on Bankruptcy § 59.09 [2] (14th ed. 1971).

As regards the October 1969 notes, however, the agreement of Radbill and Adrian to remain personally liable on the ninety-day notes for one year after the October 1969 purchase agreement would appear to constitute adequate consideration for those October notes. The agreement provides for a benefit to Charmar in exchange for Charmar’s promise to provide and pay on the notes it had issued to the parties and thus comports with the traditional concept of consideration. See, Irwin v. Lombard University, 56 O.S. 9 (1887). Thus, appellant’s contention that the October notes lacked consideration must fail and, accordingly, appellees Adrian and Rad-bill qualify as creditors within Section 59(b).

The judgment of the District Court is affirmed.

      . The corporation owned and operated a car wash in Westerville, Ohio. The record does not disclose any other operation or asset.

      . The apparent effect of this arrangement is that Zingarelli avoided personal liability since the shares were transferred to Zingarelli and the notes came from Char-mar.

      . 11 U.S.C. § 67 (c) provides as follows:
      “(c) A person aggrieved by an order of a referee may, within ten days after the entry thereof or within such extended time as the court upon petition filed within such ten-day period may for cause shown allow, file with the referee a petition for review of such order by a judge and serve a copy of such petition upon the adverse parties who were represented at the hearing. Such petition shall set forth the order complained of and the alleged errors in respect thereto. Unless the person aggrieved shall petition for review of such order within such ten-day period, or any extension thereof, the order of the referee shall become final. Upon application of any party in interest, the execution or enforcement of the order complained of may be suspended by the court upon such terms as will protect the rights of all parties in interest.”

      . S.Rep.No.1689, 86th Cong., 2d Sess.; 1960 U.S.Code Congressional and Administrative News, Vol. 2, pp. 3194-3195.

      . In re Imperial “400” National, Inc., 391 F.2d 163 (3rd Cir. 1968); St. Regis Paper Co. v. Jackson, 369 F.2d 136 (5th Cir. 1966); In re Acme Furnace Fitting Co., 302 F.2d 318 (7th Cir.), cert. denied, Biggs v. Acme Furnace Fitting Co., 371 U.S. 853, 83 S.Ct. 89, 9 L.Ed.2d 88, reh. denied, 371 U.S. 906, 83 S.Ct. 209, 9 L.Ed.2d 168 (1962); Goff v. Pfau, 418 F.2d 649 (8th Cir. 1969), cert. denied, 398 U.S. 931, 90 S.Ct. 1830, 26 L.Ed.2d 97, reh. denied, 399 U.S. 917, 90 S.Ct. 2212, 26 L.Ed.2d 577 (1970); In re Abilene Flour Mills Co., 439 F.2d 937 (10th Cir. 1971).

      . The September 1970 and proposed December 1970 notes were already part of the record.

      . It seems clear that the real purpose of the notes issued by Charmar was to reimburse Adrian and Radbill for the sale of the stock to Zingarelli; however, we do not find it necessary to further consider this aspect.

      . There is no contention that appellee Bank is not a creditor within Section 59(b).


author: ALDRICH, Senior Judge. PER CURIAM.

text:
    Sidney R. LIPMAN et al., Plaintiffs-Appellants, v. COMMONWEALTH OF MASSACHUSETTS et al., DefendantsAppellees.
    No. 72-1315.
    United States Court of Appeals, First Circuit.
    Heard Dec. 5, 1972.
    Decided Feb. 2, 1973.
    On Motion for Rehearing Feb. 14, 1973.

      Jerome P. Faeher, Boston, Mass., with whom Harry T. Daniels and Hale & Dorr, Boston, Mass., were on brief, for appellants.
    Walter H. Mayo III, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on brief, for appellee, Commonwealth of Massachusetts.
    Kevin M. Keating, Boston, Mass., with whom Charlotte Anne Perretta and Crane, Inker & Oteri, Boston, Mass., were on brief, for appellee, Edward V. Keating.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   ALDRICH, Senior Judge.

On the night of July 18, 1969, Mary Jo Kopechne was accidentally drowned at Chappaquiddick Island, Massachusetts, under circumstances which attracted national, and, indeed, international attention. Because of the possibility of criminal activity in connection therewith a district court inquest was ordered. Massachusetts district courts having no official or regular reporters, plaintiff Lipman, an experienced freelance court stenographer, was engaged by the County District Attorney, one Dinis, to record and transcribe the testimony. Recognizing the marketable value to wire services, newspapers and magazines, of copies of the transcript, plaintiff prepared to make daily copy in substantial quantity, and incurred various expenses in connection therewith. There is no suggestion that this was other than for his personal benefit, or that the expenditure presently affords him any claim. At the same time it seems apparent, in view of the physical preparations in the courthouse, that the district judge knew and had no objection to the procedure. In the light of certain additional evidence, we will assume, for the purposes of this case, that the judge affirmatively assented. Senator Edward M. Kennedy, however, who had been driving the car in which Kopeehne met her death, became apprehensive that the publicity attending the inquest would be detrimental to him in connection with subsequent criminal proceedings, if such should eventuate. He instituted proceedings in the Massachusetts Supreme Judicial Court. The court agreed with him, and ordered the inquest held in camera and the transcript impounded until certain conditions were met. Kennedy v. Justice of the District Court of Dukes County, 1969, 356 Mass. 367, 252 N.E.2d 201. The inquest was rescheduled and plaintiff was rehired, this time by the district judge, who designated plaintiff the official reporter. The judge requested two copies of the transcript on a daily basis, and each day plaintiff turned these over, together with his notes, keeping nothing himself. Nothing was said about further copies. The impounding order meant, of course, that daily copy could not be sold to the media. When the inquest was completed, the Chief Justice of the Superior Court, pursuant to the Kennedy opinion, ordered the transcript impounded and transferred to the office of the Superior Court Clerk for Suffolk County.

Thereafter it came to plaintiff’s attention that defendant Keating, Clerk of the Massachusetts Superior Court, was planning to have the Xerox Corporation make a large number of copies of the transcript. Keating, in his capacity as clerk, would then sell the copies to the public when the impounding order was lifted. Keating proposed to require a deposit of $75. per copy, a portion to be refunded if unnecessary to defray copying costs. Plaintiff’s charge for the 794 page transcript would have been much higher: approximately $560. per copy at customary freelance rates, or $320. per copy at rates charged by official Superi- or Court reporters.

Since plaintiff had many contracts to sell copies, there followed a flurry of activity to prevent what he feared might be an irretrievable loss, because of judicial immunity and other impediments, if sales should be made at $75. by the Clerk. He applied to the Superior Court and the Supreme Judicial Court of Massachusetts, asking permission to sell the transcript. He also applied to the United States District Court, and ultimately to this court, for an injunction against what he termed defendant Keating’s unconstitutional taking of his property without due process. When the dust, we might almost say smoke, had cleared, plaintiff found himself with a state court order authorizing Keating to carry out his announced intention of selling to all comers at a deposit of $75, but to retain in escrow any balance of receipts over expenses pending the outcome of this litigation, and with no counter-order from the federal court. On the release day the Superior Court sold, simultaneously, 111 copies of the transcript, and thereafter placed in the escrow account the sum of $3,225, as profit over expenses. The notes were subsequently-returned to plaintiff. They were of no use to him — he has sold nothing further.

The district court, in addition to denying plaintiff’s claim for a preliminary injunction of the sale, had treated defendants’ motion to dismiss as one for summary judgment and had granted it. Lipman v. Commonwealth, D.Mass., 1970, 311 F.Supp. 593. In an order issued after the sale had taken place we vacated this judgment and ordered a full trial. The district court, 345 F.Supp. 523, following that trial, dismissed as against Keating on the ground that he was protected as an officer of the court entitled to judicial immunity. It also dismissed as against the Commonwealth, rejecting plaintiff’s claim on the merits and also finding the Commonwealth protected by sovereign immunity. Since it is unnecessary to reach the formidable immunity defenses raised by defendants if we find plaintiff not entitled to relief on the merits we turn to the question of what rights plaintiff had in the reproduction and sale of the transcript.

Plaintiff claims both a property right and a common law copyright in the transcript. With respect to the latter he cites an English case, Walter v. Lane, [1900] A.C. 539, but no other authority. Without deprecating the mechanical skill necessary to become a stenotypist, we can recognize no ownership for that reason in a transcription of a judicial hearing. Since transcription is by definition a verbatim recording of other persons’ statements, there can be no originality in the reporter’s product. See Nimmer on Copyright, §§ 10, 66.

We move to plaintiff’s more substantial claim of a property right, which might also be thought of as a contract right. See note 7, ante. Having no express agreement, plaintiff points to a custom, which he says is universal, to permit a court reporter to sell transcript copies to all who desire them. The district court rejected this claim in its first proceeding, but we vacated those findings, believing the court had taken too narrow a view of the relevant custom. We ordered the court on remand to consider “custom and usage in the reporters’ trade generally.” We did this in part because of a substantial showing made by plaintiff, starting with the fact that official Massachusetts court reporters are by statute permitted to charge for copies to the parties even though they receive a basic salary. Mass.G.L. c. 221, § 88. Freelance reporters, having no salary, would seem, prima facie, even more in need of the additional remuneration. The evidence developed on remand showed, without contradition, that in respect to other judicial proceedings freelance reporters regularly had this opportunity. The district court nevertheless held this irrelevant because plaintiff could show no custom with respect to “[sale] to non-parties [of] plural copies of an official inquest.” While the court was free to reject any implication in our remand which ordered it to consider custom and usage in the reporters’ trade generally, it suggested no reason for distinguishing inquests from other judicial proceedings, but assumed it without discussion.

In the absence of any affirmative reason, we are unable to think that a custom permitting reporters to sell transcripts of judicial proceedings generally ceases in some particular instance merely because the purpose of the proceeding varies. The Commonwealth asserts that a reason is to be found in the standards announced in the Kennedy opinion. Since the court said nothing on the subject of reproduction and sale of copies, whatever changes it made in that connection should be those which naturally followed from its rulings. The significant rulings were that the inquest was to be secret and the transcript impounded until it was apparent that no prosecution would ensue. While manifestly this prevented sale of copies before then, we find no implication of any new principle as to sale once the public release date occurred.

No doubt counsel felt obliged to make the argument he did, but we consider it groundless. Indeed, each time that we pressed him, counsel retreated to the broad position that the district courts have, generally, no official reporters. Why this circumstance should permit freelance reporters to sell transcripts when hired in superior court proceedings, but not when they are officially hired, on occasion, in the district court, counsel did not say, nor could we. Clearly there was a general custom of some sort with respect to sale of copies of judicial transcripts. We see no basis for a finding that, other than as to the release date, inquest proceedings were an exception.

Plaintiff’s difficulties, however, are not over; it is necessary to pinpoint the custom. One of plaintiff’s witnesses, an official Massachusetts reporter of many years experience, testified that before sale of copies of a trial transcript to non-parties she sought the court’s permission. No substantial persuasive evidence contradicted that testimony. Apart from the technical possibility that plaintiff may be bound by his own witness in such circumstances, we find this testimony both significant and appealing. We ourselves, although we would want our reporters adequately paid, would not have been happy with the prospect of compelling a large number of anxious, to the point of captive, buyers, to pay $35,000 or more for what cost but $5,000 to reproduce. We would fully accept the proposition that freelance reporters count on the sales of copies of transcripts for their normal living wage, but this fact is hardly sufficient to explain to the public such a bonanza at its expense. A custom which, through the necessity of obtaining its consent, would permit the court to regulate the conditions of public sales seems quite understandable. We instinctively rebel at the notion that a court should be entirely without control over the reporter’s use of an official transcript.

Plaintiff points to the conceded fact that the court had never before engaged in reproducing and selling transcript copies. Granting this, it is apparent, also, that this is the only case where so many members of the public wanted copies, and found themselves, by reason of competitive pressure, in the position of having to pay almost whatever was asked. The fact that reporters hitherto sold transcripts to non-parties is not determinative. This was not an ordinary case. A general policy of non-intervention cannot mean that a court is stripped of its authority to act when it sees a need to do so.

Having identified the custom, we consider whether plaintiff states a claim under it. We have found, ante, that prior to the injunction of the first inquest plaintiff had obtained at least implicit consent from the presiding judge to furnish daily copy to the press. When the inquest was aborted, however, and the proceedings ordered secreted, plaintiff dismantled his extensive daily-copying operation. While he states he was “reengaged” by the presiding judge for the inquest, he concedes that he did not discuss with the judge the matter of post-impounding transcript sales, and since, after the Kennedy order, there were no external manifestations of reproduction at the courthouse, there is nothing to support a claim of implicit consent. Nor, of course, did he obtain consent from the Superior Court, which was responsible for release of the transcript, or from any other court.

Although plaintiff has not made the separate point, what we have been saying applies only to sales to third persons; the question of sales to the parties remains. By statute, Mass.G.L. c. 221 § 88, official Superior Court reporters are entitled to sell copies to the parties at an established rate. Though plaintiff is a freelance reporter, we have noted previously that this difference should not affect his rights. Moreover, after the Kennedy opinion, plaintiff, for the first time, was hired as the “official” reporter. See Mass.G.L. c. 221 § 83. The evidence on custom and usage does not support a holding that reporters must seek court permission before selling transcripts to the parties, and the rationale behind the consent requirement does not apply to such sales. When sales are limited to those formally associated with the litigation, at an established rate, the potential of abuse by the reporter — at the expense of the public and to the. embarrassment of the court — is eliminated.

We can think of no reason why, when a reduced rate is established for the benefit of the public, it should accrue to relieve the parties of the customary charge, or, when it was made ex post facto, deprive plaintiff of the benefits rightly expected at the time of his hiring. It is, of course, true that the parties might not have ordered as many copies had they been required to pay the going per-copy rate. It is late, however, to engage in such speculation. The fact is, they did order them. The further fact is that the money is available. It would seem prima facie unfair to no one to deduct from the escrow account, as a cost of the Superior Court operation whereby plaintiff was deprived of his legitimate expectations, the going official reporter rate for the parties’ copies, and to order judgment in favor of the plaintiff in that amount. As to this amount, chargeable against the fund, we see no immunity problems. Cf. Alcoa Steamship Co. v. Perez, 1 Cir., 1970, 424 F.2d 433. In the case at bar there was not, as in Perez, bad faith, but the contrary. However, placing the fund in a special count in the name of the clerk, see n.4, ante, avoids the need of a judgment against the Commonwealth treasury. We accordingly direct that judgment against defendant Keating, in his official capacity as Superior Court Clerk, be entered by the district court in the amount determined.

The judgment of the district court is vacated and the case remanded for further proceedings consistent herewith.

MEMORANDUM ON MOTION FOR REHEARING

PER CURIAM.

Plaintiffs, by motion for rehearing, assert that the matter of a custom requiring the court’s permission for the sale of transcripts to non-parties was not adequately developed at argument, and that they wish to pursue it further. We question the premise. Assuming, however, it to be true, the petition is nonetheless denied. We would consider that a court has inherent power to prevent the sale of transcripts at an exorbitant profit — public confidence in administration of the courts demands no less. The fact — if it be the fact— that the Dukes County District Court originally consented to an exorbitant profit does not prevent the Supreme Judicial Court from taking a second look.

      . There is a second plaintiff, but for purposes of convenience he may. be disregarded.

      . The court did not limit its ruling to the Kopeehne inquest, but laid down general rules for all inquests thereafter to be held in the Commonwealth.

      . The daily rate was even higher. At this rate, which is what the media had contracted for before the impounding order, a single copy might have cost over $800. Certainly this figure could not have been thought involved after the inquest was closed to the public.

      . We declined to consider the merits at that time since we believed that the interest of the state court in controlling its transcript was more important than plaintiff’s rights, assuming he could establish any. Noting the possibility that immunity might unfairly affect plaintiff's claim, we made certain suggestions, one of which was an escrow account.

      . The court below assumed, as we do, that this retained “profit” will be refunded pro rata to the transcript purchasers. We might well have approached the matter of the escrow fund in a different manner had we been led to believe that the Commonwealth was being enriched at the expense of plaintiff. See post.

      . Once the content was out, no more copies were sought. It is apparent that the large number of initial buyers was due to a widespread fear among the media of being scooped.

      . In the numerous times this case has been before us, no serious question of subject matter jurisdiction has been raised. We note first that plaintiff asserts a claim in excess of $10,000. See 28 U.S.C. § 1331 (a). The bases of his claim are a property right in his notes that were withheld from him until they were no longer useful, a common law copyright, and a custom which permits court reporters to sell transcript copies. The first two are clearly traditional property interests and the third, while in some respects analogous to a contract right, can certainly be thought of as a “legitimate claim of entitlement.” Board of Regents v. Roth, 1972, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548. Thus the complaint states property rights protected by 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) against state deprivation. See Lynch v. Household Finance Corp., 1972, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424. Cf. Goldberg v. Kelly, 1970, 397 U.S. 254, 261, 263, n. 8, 90 S.Ct. 1011, 25 L.Ed.2d 287.

      . Defendant Keating points out that the English court in the Lane ease was dealing with a copyright statute that did not require “originality either in thought or in language.” [1900] A.C. at 548.

      . Plaintiff does suggest that the district attorney made such an agreement, but if only for reasons we are about to come to, we recognize in Dinis no authority to do so.

      . Cf. 28 U.S.C. § 753.

      . It may be contended that no one has raised the matter of public relations until this moment. While no extensive discussion of the point occurred, the Superior Court’s Memorandum of April 27, 1970 did allude to the plaintiff’s intention of selling copies at $800. per copy and went on to state that sale by the Superior Court “seemed to be the fairest and most efficient way of making public the inquest documents, bearing in mind the great public interest and the volume of requests for copies from the press and radio and television stations all over the country.” Moreover, it is our duty to consider all possible grounds upon which the court might have acted. This one readily occurs to us; indeed, it did so from the beginning.

      . Plaintiff seems to represent that defendant Keating was acting totally without court direction in devising, in early April, the plan for distribution of the transcript. This would not only be irrelevant; for reasons not worth detailing it is contrary to our reading of the record.

      . Indeed, we interpret plaintiff’s petition to the Supreme Judicial Court as an administrative appeal from the Superior Court’s denial of consent. Plaintiff is correct in stating that the Supreme Judicial Court did not adjudicate his rights; it was, however, the last chance for plaintiff to perfect his rights, if formal consent was necessary.

      . It is true that the potential refundees are hereby having their repayments reduced without an opportunity to be individually heard. However, the amount is small (“deminimis and only a trifel,” to quote from a current brief in another case), especially so in the light of what they would have had to pay if plaintiff had been allowed to sell copies at the full rate. It is also to be borne in mind that without this deduction plaintiff will not receive even a modest copy profit.