author: O’SULLIVAN, Senior Circuit Judge. WEICK, Circuit Judge McCREE, Circuit Judge EDWARDS, Circuit Judge,

text:
    SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. Steve CONRAD et al., Defendants-Appellees.
    No. 72-1672.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov., 28, 1972.
    Decided May 30, 1973.
    Rehearing and Rehearing In Banc Denied Oct. 30, 1973.
    Henry P. Monaghan, Boston, Mass., John Alley, Alley & Raulston, Chattanooga, Tenn., Gerald A. Berlin, Boston, Mass., on brief, for plaintiff-appellant.
    Randall L. Nelson, Special Counsel, Chattanooga, Tenn., Eugene Collins, City Atty., Chattanooga, Tenn., on brief, for defendants-appellees.
    Before WEICK and MeCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

This is an appeal from dismissal of plaintiff-appellant’s complaint seeking a declaratory judgment and a mandatory injunction whereby to require the Municipal Auditorium Board of Chattanooga, Tennessee, to lease a municipal thea-tre to appellant, there to exhibit the stage play HAIR. The theatre in question was under the control of such Auditorium Board. The case was heard at Chattanooga by the Honorable Frank W. Wilson, Chief Judge of the United States District Court for the Eastern District of Tennessee, Southern Division. He denied the relief asked by plaintiff-appellant.

We affirm the judgment of the District Court on the opinion of the District Judge. Such opinion is reported as Southeastern Promotions, Inc. v. Conrad, 341 F.Supp. 465 (E.D.Tenn.1972).

While we adopt such opinion, we think it right to say this much more. After disposing of several grounds asserted by defendants to support their motion to dismiss, as without validity, the District Judge set out the controlling issues as follows:

“.Trial on the Merits
“Turning to the merits of this lawsuit, the pleadings raise essentially the issue of whether the defendant Board acted within its lawful discretion in declining to lease its theater and/or auditorium facility to the plaintiff for the reason that the plaintiff’s theatrical production ‘Hair’ would violate Paragraph (1) of the standard lease form requiring the lessee to comply with all state and local laws in its use of the leased premises. More specifically, the issue presented by the pleadings is whether the theatrical production ‘Hair’ would violate any constitutionally valid provision of the common law of Tennessee relating to indecent exposure, gross indecency, or lewdness or would violate any constitutionally valid provision of City ordinances and State statutes which, among other matters, purport to make public nudity and obscene acts criminal offenses.” 341 F.Supp. at 471.

With instructions, the propriety of which appellant does not challenge, there was submitted to an advisory jury the question of whether the production was obscene. Their verdict said that it was. The judge, then reviewing the same evidence and correctly employing the governing rules, made his own finding that the play was obscene.

At the outset, we think that understanding of this decision will be aided by setting out the style, action and content of HAIR as recited in the District Court’s opinion. That -such recital was accurate is not here challenged by plaintiff-appellant. Here it is:

“Findings of Fact

“Turning first to the issue of obscenity, the script, libretto, stage instructions, musical renditions, and the testimony of the witnesses reflect the following relevant matters (It should be noted that the script, libretto, and stage instructions do not include but a small portion of the conduct hereinafter described as occurring in the play):

“The souvenir program as formerly distributed in the lobby (Exhibit No. 1) identified the performers by picture and biographical information, one female performer identifying herself as follows:

‘Hobbies are picking my nose, fucking, smoking dope, astro projection. All that I am or ever hope to be, I owe to my mother.’

It was testified that distribution of this program had now been discontinued. Prior to the opening of the play, and to the accompaniment of music appropriate to the occasion, a ‘tribe’ of New York ‘street people’ start gathering for the commencement of the performance. In view of the audience the performers station themselves in various places, some mingling with the audience, with a female performer taking a seated position on center stage with her legs spread wide to expose to the audience her genital area, which is covered with the design of a cherry. Thus the stage is set for all that follows. The performance then begins to the words and music of the song ‘Aquarius,’ the melody of which, if not the words, have become nationally, if not internationally, popular, according to the evidence. The theme of the song is the coming of a new age, the age of love, the age of ‘Aquarius.’ Following this one of the street people, Burger, introduces himself by various prefixes to his name, including ‘Up Your Burger,’ accompanied by an anal finger gesture and ‘Pittsburger,’ accompanied by an underarm gesture. He then removes his pants and dressed only in jockey shorts identifies his genitals by the line, ‘What is this God-damned thing? 3,000 pounds of Navajo jewelry? Ha! Ha! Ha!’ Throwing his pants into the audience he then proceeds to mingle with the audience and, selecting a female viewer, exclaims, ‘I’ll bet you’re seared shitless.’

“Burger then sings a song, ‘Looking for My Donna,’ and the tribe chants a list of drugs beginning with ‘hashish’ and ending with ‘Methadrine, Sex, You, WOW!’ (Exhibit No. 4, p. 1-5) Another male character then sings the lyric.

‘SODOMY, FELLATIO, CUNNILINGUS, PEDERASTY — FATHER, WHY DO THESE WORDS SOUND SO NASTY? MASTURBATION CAN BE FUN. JOIN THE HOLY ORGY, KAMA SUTRA, EVERYONE.’ (Exhibit No. 4, p. 1-5)

“The play then continues with action, songs, chants, and dialogue making reference by isolated words, broken sentences, rhyme, and rapid changes to such diverse subjects as love, peace, freedom, war, racism, air pollution, parents, the draft, hair, the flag, drugs, and sex. The story line gradually centers upon the character Claude and his response and the response of the tribe to his having received a draft notice. When others suggest he burn his draft card, he can only bring himself to urinate upon it. The first act ends when all performers, male and female, appear nude upon the stage, the nude scene being had without dialogue and without reference to dialogue. It is also without mention in the script. Actors simulating police then appear in the audience and announce that they are under arrest for watching this ‘lewd, obscene show.’

“The second act continues with song and dialogue to develop the story of Claude’s draft status, with reference interspersed to such diverse topics as interracial love, a drug ‘trip,’ impersonation of various figures from American history, religion, war, and sex. The

play ends with Claude’s death as a result of the draft and the street people singing the song, ‘Let the Sunshine In,’ a song the testimony reflects has likewise become popular over the Nation.

“Interspersed throughout the play, as reflected in the script, is such ‘street language’ as ‘ass’ (Exhibit No. 4, pp. 1-20, 21 and 2-16), ‘fart’ (Exhibit No. 4, p. 1-26), and repeated use of the words ‘fuck’ and the four letter word for ex-

cretion (Exhibit No. 4, pp. 1-7, 9 and 41). In addition, similar language and posters containing such language were used on stage but not reflected in the script.

“Also, throughout the play, and not reflected in the script, are repeated acts of simulated sexual intercourse. These were testified to by every witness who had seen the play. They are often unrelated to any dialogue and accordingly could not be placed with accuracy in the script. The overwhelming evidence reflects that simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercourse are committed throughout the play, often without reference to any dialogue, song, or story line in the play. Such acts are committed both standing up and lying down, accompanied by all the bodily movements included in such acts, all the while the actors and actresses are in close bodily contact. At one point the character Burger performs a full and complete simulation of masturbation while using a red microphone placed in his crotch to simulate his genitals. The evidence again reflects that this is unrelated to any dialogue then occurring in the play. The evidence further reflects that repeated acts of taking hold of other actors’ genitals occur, again without reference to the dialogue. While three female actresses sing a song regarding interracial love, three male actors lie on the floor immediately below them repeatedly thrusting their genitals at the singers. At another point in the script (Exhibit No. 4, P- 2-22) the actor Claude pretends to have lost his penis. The action accompanying this line is to search for it in the mouths of other actors and actresses.”

341 F.Supp. at 472-474 (Emphasis supplied).

The instructions which the District Judge gave to the jury are also set out in his opinion. While appellant, as a second position, asserts that the play HAIR is not in fact obscene, the principal thrust of its address to us is that the producer’s First Amendment right to free speech forbids any interference with the exhibition of the play. They fault the District Judge for allegedly considering the obscene conduct in the play independently from its “speech.” Their argument appears to be that obscenity must be tolerated if it is a part of the same vehicle whereby First Amendment rights are allegedly being exercised. They say:

“These forms of communication [motion pictures or plays] are to be treated for what they are, not artificially carved into speech and ‘something else.’ * * *
“We think it apparent then that the judge’s attempt to draw an artificial distinction between speech and conduct is wholly without support in either reason or authority.”

We agree with the District Judge that free speech cannot be used as a vehicle to carry obscenity — -thus to allow, without limit, public exhibition of obscenities. We must be aware that the speech of the play is employed to give meaning to the physical conduct of the players. While it is not necessary to affirmance of the District Judge, we are persuaded that the play’s language — its speech — is itself obscene. Whether the play is considered separately as to its speech and its conduct, or they are joined, it is obscene.

Appellant’s brief does not provide a succinct expression of a message conveyed by HAIR. From our reading of the witnesses who found, and attempted explanation of its message, we assume, the message was to expose the “hypocrisy” of today’s middle class, middle aged society, in its attitude toward sex. We do not think that any society can be charged with hypocrisy for finding less than beautiful,

“SODOMY, FELLATIO, CUNNILINGUS, PEDERASTY — FATHER, WHY DO THESE WORDS SOUND SO NASTY?

MASTURBATION CAN BE FUN. JOIN THE HOLY ORGY, KAMA SUTRA, EVERYONE.”

The foregoing is a part of the lyrics of one of the play’s songs. We are not persuaded that the First Amendment can be construed as providing that “anything goes” so long as a message is claimed to be given.

Appellant emphasizes the success that has attended the showing of HAIR, saying:

“HAIR is a musical which deals with the life styles of many young people and their attitudes on the Vietnam war, racism, sex, drugs, pollution, etc. It has been produced in 140 American cities and in fourteen cities throughout the remainder of the world. HAIR is the most popular box office attraction in the history of American theatre.” (Emphasis supplied.)

One of appellant’s witnesses, in speaking of HAIR’s message, said that the play expresses “the hoped for cleansing and rebirth of this society,” (Emphasis supplied). It was asserted by another, who compared HAIR with the musical “Oklahoma”:

“It [HAIR] brought a new kind of music to the theatre and a new seriousness even beyond that of ‘Oklahoma’ ”.

Two college professors supported the claim that HAIR expressed a worthwhile message. A player identified himself as follows: “George Burger, Unzipped Burger, Pull ’em down Burger, Up Your Burger,” and as recited by the District Judge, this was accompanied by an anal finger gesture. One of the professors said of this, “I think in some context it can have redeeming social value.”

We ponder whether HAIR’s box office success supports appellant or merely portrays that those charged with enforcing the law have now despaired of success in attempts to frustrate the obscenity and pornography which is being thrust upon today’s total society.

Appellant says that the few district courts which have denied relief to the producers of HAIR were reversed on appeal, citing Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F. 2d 1016 (5th Cir. 1972); Southeastern Promotions, Ltd. v. Oklahoma City, Oklahoma, 459 F.2d 282 (10th Cir. 1972); and Southeastern Promotions, Ltd. v. City of Mobile, Alabama, 457 F.2d 340 (5th Cir. 1972). It will be sufficient to say that in none of these cases was obscenity vel non in issue.

We consider that the District Judge’s opinion adequately discusses and disposes of all of the issues before him.

Judgment affirmed.

WEICK, Circuit Judge

(concurring).

I concur in Judge O’Sullivan’s opinion. I would add only a few comments.

Ordinarily, an owner of real property may rent it to whomever he pleases. He would have the right to decide whether he ought to rent his property to persons who, desire to exhibit conduct which is not in good taste. Certainly no court should order him under the First Amendment to exhibit offensive conduct portraying immoral sexual acts of the worst sort.

The auditorium involved in this case belonged to the City, which is a political subdivision of the State. It was constructed with taxpayers’ money. It goes without saying that the city fathers could not be compelled to rent the auditorium to a person who desired to operate therein a house of ill fame, in violation of state law. Yet the conduct exhibited by the film in the present case is even worse as it portrays obscene sexual acts which could be committed only by depraved persons.

We do not consider here the right of a person to exhibit such a film on his own property or on property which he has rented. Our case involves only the question whether a federal court has any right to order the state to permit the exhibition for profit of filthy, obscene, sexual material on state property. Federal Courts ought not take over the operation of state facilities.

In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Court upheld the right of the state to prohibit the exhibition of obscene material in a private saloon. Here, we are dealing, not with private property, but with public property and with police power of the state.

As pointed out in LaRue, the First Amendment protects “expression”, not “action”. Our case involves only depraved sexual action.

We would doubt that a Federal Court would ever attempt to compel the Federal Government to rent its property for any such immoral purpose. It is also inconceivable that a Federal Court would order such an exhibition to be held in the Eisenhower Theatre located in the John F. Kennedy Center for the Performing Arts at the Capitol. State facilities should be treated with the same respect as federal facilities.

No one has a constitutional right to exhibit obscene sexual acts in public buildings.

McCREE, Circuit Judge

(dissenting).

I respectfully dissent. I believe Judge Edenfield correctly stated the test to be applied in determining whether a play is obscene in his opinion in Southeastern Promotions, Ltd. v. City of Atlanta, 334 F.Supp. 634, 639 (N.D.Ga.1971), in which an official of the Atlanta Civic Center refused to lease the auditorium for the exhibition of “Hair”:

The court cannot accept the proposition that stage productions may be dissected into ‘speech’ and ‘non-speech’ components as those terms have been used by the Supreme Court. The nonverbal elements in a theatrical production are the very ones which distinguish this form of art from literature. It may foe true that First Amendment protections vary in different media, but a musical play must be deemed a unitary form of constitutionally protected expression. The court concludes that the entire musical play ‘Hair’ is speech and entitled to First Amendment protection.

The District Judge in our case sought unsuccessfully to distinguish Judge Ed-enfield’s opinion by stating :

The fallacy of that position is readily apparent, however, if any crime other than the crime of obscenity were committed in the course of a live state production. That Court would doubtless have no difficulty in disecting [sic] speech and nonspeech components if the crime committed on the stage were the crime of rape or homicide, even though called for in the script. It is a false and dangerous doctrine that the First" Amendment forbids all regulation of conduct so long as that conduct masquerades under the guise of the theatrical.

Southeastern Promotions, Ltd. v. Conrad, 341 F.Supp. 465, 476 (E.D.Tenn. 1972). It begs the question to call an act viewed in isolation as criminal when the constitutional test of criminality vel non requires it to foe examined in context. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1956); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

As Mr. Justice Marshall stated in his dissent in California v. LaRue, 409 U.S. 109, 130, 93 S.Ct. 390, 402, 34 L.Ed.2d 342 (1972):

If, as these many cases hold, movies, plays and dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is ‘speech’ within the meaning of the First Amendment, but that the individual gestures of the actors are ‘conduct’ which the State may prohibit.

The majority opinion in LaRue implicitly rejected the technique of excerpting and censoring specific conduct from - a protected vehicle. In observing that “[t]he state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in the context of licensing bars and nightclubs to sell liquor by the drink,” 409 U.S. at 114, 93 S.Ct. at 395, the Court acknowledged that some of the performances banned by the regulations from presentation in establishments licensed to sell liquor by the drink would have been protected if offered in a theater :

We do not disagree with the District Court’s determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e. g., Sunshine Book Co. v. Summerfield, 355 U.S. 372 [78 S.Ct. 365, 2 L.Ed.2d 352] (1958) rev’g per curiam, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do not believe that the state regulatory authority in this ease was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O’Brien (United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672) supra.
The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, “performances” that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.
Viewed in this light, we conceive the State’s authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance is without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of Bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater. 409 U.S. at 116, 118, 93 S.Ct. at 396, 397.

Nevertheless, and perhaps because of reluctance to rely solely on the theory of the District Court, my brothers in this appeal make their own additional finding (consistent with that of the advisory jury) that the play “Hair,” viewed as a whole, is obscene. With this determination I also disagree. However, instead of contributing further to the already too extensive and inelegant legal literature recounting tawdry details of challenged works, I observe merely that I know an obscene play when I see one and upon autoptic view “Hair” is not that. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).

I would reverse and remand with instructions to grant the relief prayed for.

ON PETITION FOR REHEARING

Before WEICK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.

ORDER

This cause is before the Court upon the motion of Plaintiff-Appellant for rehearing, with suggestion for rehearing in banc; and Appellees having filed a brief responsive to said motion, as ordered by this Court; upon request for a vote to be taken, a majority of the active judges of this Court voted against such rehearing in banc. Therefore,

It is ordered that rehearing in banc be, and the same is, hereby denied. Circuit Judge EDWARDS and Circuit Judge McCREE dissent.

Such motion for rehearing in bane having been denied, the matter of rehearing has been considered and will be disposed of by the panel that originally heard the appeal. Therefore,

It is ordered that the petition of Plaintiff-Appellant for rehearing be, and the same is, hereby denied. Circuit Judge MeCREE dissents.

Entered by order of the Court.

WEICK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.

Judge Edwards’ dissent from denial of an in banc rehearing, with concurrence of Judge McCree, suggests the propriety of this supplement to the original majority opinion.

The dissent asserts:

“Unless the Supreme Court grants certiorari, this case will represent a final adjudication that the play ‘Hair’ is obscene and subject to being banned under state obscenity laws in Michigan, Ohio, Kentucky and Tennessee # *

We respectfully disagree. The procedural setting of this litigation makes clear the invalidity of such observation, as well as the inapplicability of the authorities cited in the dissent.

This case involved an action in equity. Plaintiff sought the aid of equity for a declaratory judgment and a mandatory injunction to require the Board of Directors of the Chattanooga Memorial Auditorium to allow exhibition therein of the play HAIR. The complaint relied on 28 U.S.C. §§ 2201 and 2202, which empower courts of equity to enter declaratory judgments. The complaint also averred deprivation of civil rights, but nowhere does the plaintiff assert a civil right to put on its show wherever it chooses. The following general principles apply to the granting or withholding of the relief sought by appellant.

“Injunction is distinctly an equitable remedy, the power to grant which stands forth as a distinct head of equitable jurisprudence and the principal and most important of its issued processes.” 42 Am.Jur.2d. Injunctions § 2, at 727-728 (1969). (Emphasis supplied.)

Application for such equitable relief invokes the Court’s discretion.

“Injunctive relief, whether prohibitory or mandatory, is granted or withheld in the exercise of sound judicial discretion * * * 42 Am.Jur.2d. Injunctions § 20, at 751 (1969).

Applications for a declaratory judgment are likewise addressed to equity’s discretion. In Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 92 L.Ed. 784 (1948), the Supreme Court said:

“A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.” (Emphasis supplied.)

In Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) the Court said:

“The injunctive and declaratory judgment remedies are discretionary, * * *."

The history and purpose of the creation of Soldiers & Sailors Memorial Auditorium by the people of Chattanooga are set out in a booklet which was received in evidence at trial. Its preface recites :

“The dedication of the Soldiers and Sailors Memorial Auditorium marks, as permanently as the work of finite hands may mark, the grateful appreciation in which Chattanooga holds her sons who offered their lives to the Nation’s service in the great World War [World War I],
“We erect for posterity, in commemoration of their patriotism, a hall in which mementoes, of their achievement may rest; an auditorium in which great bodies of our people may assemble for civic service; for the cultivation of the arts; for the promotion of a higher and a broader citizenship. It is fitting and well that our tribute should take this form.” (Emphasis supplied.)

The booklet, “Souvenir of Dedication” under a heading, “Its Operation and Management” sets out:

“It is the hope and ambition of the Board of Directors of the Soldiers and Sailors Memorial Auditorium to conduct the operation of the building in such manner as to render the greatest possible service to all the people of Chattanooga, Hamilton County and this section of the South.
“It will be their endeavor to make it the community center of Chattanooga, where civic, educational, religious, patriotic and charitable organizations and associations may have a common meeting place to discuss and further the upbuilding and general welfare of the city and surrounding territory.
“It will not be operated for profit, and no effort to obtain financial returns above the actual operating expenses will be permitted. Instead its purpose will be devoted for cultured advancement, and for clean, healthful,, entertainment which will make for the up-building of a better citizenship.” (Emphasis supplied.)

The booklet’s picture of the auditorium shows it to be a beautiful and commodious public building. The plaintiff-appellant, a New York Corporation— booking agent for the play HAIR— first sought to use a theatre, the Tivoli, a one-time commercial theatre which had been acquired by the City. Desiring, however, the larger capacity of the auditorium, the plaintiff sought equity’s aid to force opportunity to use it. A witness for plaintiff testified that a one-night production of their play in the auditorium would have made a profit in excess of $10,000. Having in mind the purposes for which the people of Chattanooga created their Soldiers & Sailors Memorial Auditorium, a court of equity cannot be faulted for withholding its writ whereby to command the Directors of the Auditorium to allow exhibition therein of a production containing the language and conduct set out in the District Judge’s opinion.

We are not persuaded that the great principles which control employment of equitable remedies must stand aside when the courts are dealing with the ever-widening contests requiring resolution of what is and what is not obscenity. We had thought that Judge Weick’s concurring opinion succinctly exposed the validity of this conclusion. We are constrained, however, by the current dissent to make these more extensive observations.

It is true that the District Judge did make a finding that the play HAIR is obscene and a violation of the ordinances of the City of Chattanooga and the statutes of Tennessee. In the original opinion of Judge O’Sullivan such a finding was approved. We believe, however, that it. was not improper for the District Judge to consider whether the play was obscene before determining whether or not to order the Directors of the Auditorium to allow its exhibition in Chattanooga.

While we do not claim that its facts make our opinion in Associated Students of Western Kentucky University v. Downing, 475 F.2d 1132 (6th Cir. 1973) a totally controlling precedent, we cite it as being consonant with what we say here. There, the governing officials of the named University cancelled a booking contract which it had previously made for the showing of a moving picture film described in the opinion. As here, plaintiffs sought a declaratory judgment and injunctive relief whereby to forbid the governing officials of Western Kentucky University from prohibiting exhibition of the film sponsored by plaintiffs — Associated Students of Western Kentucky University. In affirming refusal of the governing Board of the University to allow exhibition of the film, we said:

“In the present case the University did nothing more than to make a determination that, with respect to a particular experimental film, it would be ‘inappropriate for the University to continue as a contracting party.’ ” 475 F.2d at 1134.

We have considered the recent decisions of the Supreme Court in Miller v. California, - U.S.--, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Paris Adult Theatre v. Slaton, District Attorney,U.S. -, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), and consider that our decision and that of the District Court in the case before us are not inconsistent therewith.

EDWARDS, Circuit Judge,

dissenting, with whom McCREE, Circuit Judge, joins:

One of the “basic guidelines” recently reaffirmed by the Supreme Court in relation to the determination of a charge of obscenity is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 2615, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). See also Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

In this ease the Municipal Auditorium Board of the City of Chattanooga has refused to rent the auditorium for the presentation of the play “Hair.” A United States District Court has refused to grant relief from the board’s decision on the ground that “Hair” is obscene. A panel of this court has affirmed the District Court, also holding that “Hair” is obscene. And the majority of our court has now rejected a motion to rehear the case in banc. All of this has been accomplished without any one of those participating in rejecting the play ever having seen it. And at no level has any board member or judge entered a finding that the play “lacks serious literary, artistic, political, or scientific value.”

While I would agree that at least some of the acts described so vividly in the opinions of the District Court (Southeastern Promotions, Ltd. v. Conrad et al., 341 F.Supp. 465 (E.D.Tenn.1972)) and of this court (Southeastern Promotions, Ltd. v. Conrad et al., 486 F.2d 894 (6th Cir. 1973)) could, if viewed separately, appropriately be labelled obscene under the present standards of the United States Supreme Court (see Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. at 2615.) I do not agree that the play may be judged obscene, unless it is “taken as a whole” for purposes of that judgment. Thus far we have signally failed to do this. Taking words and sentences out of context, taking gestures employed in a play without reference to the rest of the play as has been done herein does not comply with the standard set out in Miller, supra, and Roth, supra.

Over and above the first amendment violation described above the procedures employed to ban this play amounted to unconstitutional prior restraint on speech. See Paris Adult Theatre v. Sla-ton, -U.S.-, 93 S.Ct. 2628, 37 L.Ed. 2d 446 (1973) ; Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

Additionally the standards employed by the Municipal Auditorium Board in rejecting the application for rental at the theatre are clearly unconstitutionally vague.

Unless the Supreme Court grants cer-tiorari, this case will represent a final adjudication that the play “Hair” is obscene and subject to being banned under state obscenity laws in Michigan, Ohio, Kentucky and Tennessee — and this, we repeat, without any board member or judge so holding ever having seen the play.

My colleagues Judges Weick and O’Sullivan appear to dispute the accuracy of the paragraph above. I will let the record speak for itself.

Judge O’Sullivan’s opinion, in which Judge Weick concurred, said:

We affirm the judgment of the District Court on the opinion of the District Judge.
The opinion of the District Court held:
This Court is accordingly of the opinion that the theatrical production “Hair” contains conduct, apart from speech or symbolic speech, which would render it in violation of both the public nudity ordinances of the City of Chattanooga and the obscenity ordinances and statutes of the City and of the State of Tennessee.

Reviewing the evidence independently, Judge O’Sullivan’s opinion held:

While it is not necessary to affirmance of the District Judge, we are persuaded that the play’s language — its speech— is itself obscene. Whether the play is considered separately as to its speech and its conduct, or they are joined, it is obscene.

      . Lincoln is regaled with the following lyrics : ‘I’s free now thanks to you, Massa Lincoln, emancipator of the slave, yeah, yeah, yeah! Emanci — mother fucking— pater of the slave, yeah, yeah, yeah! Emance — mother fucking — pater of the slave, yeah, yeah, yeah!’ With Lincoln responding, ‘Bang my ass ... I ain’t dying for no white man!’

      . A woman taking her departure says to the tribe, ‘Fuck off, kids.’ (Exhibit No. 4, p. 1-35). The following dialogue occurs as Claude nears his death scene:
      ‘Burger: I hate the fucking world, don’t you?
      ‘Claude: I hate the fucking world, I hate the fucking winter, I hate these fucking streets.
      ‘Burger: I wish the fuck it would snow at least.
      ‘Claude: Yeah, I wish the fuck it would snow at least.
      ‘Burger: Yeah, I wish the fuck it would.
      ‘Claude: Oh, fuck!
      ‘Burger: Oh, fucky, fuck, fuck!’ (Exhibit No. 4, p. 2-22)

      . Judge McCree who did see the play dissented from the majority opinion characterizing it as obscene.

      . “A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
      The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. [229], at 230 [92 S. Ct. 2245, at 2246, 33 L.Ed.2d 312] (1972), quoting Roth v. United States, supra, 354 U. S., at 489 [77 S.Ct, at 1311] (1957), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615.

      . The Chattanooga Commissioner in charge of the municipal theatre testified before the District Court that the theatre was refused for presentation of “Hair” because the city permitted only productions which are “clean and healthful and culturally uplifting.”


source: Caselaw Access Project

author: CLARK, Associate Justice.

license: Public Domain

text:
    Cleveland UMBAUGH, Appellant, v. Terrell Don HUTTO, Commissioner of Corrections, State of Arkansas, Appellee.
    No. 73-1113.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1973.
    Decided Oct. 29, 1973.

      John G. Lile, III, Pine Bluff, Ark., for appellant.
    James W. Atkins, Asst. Atty. Gen., Little Rock, Ark., for appellee.
    Before MR. JUSTICE CLARK and HEANEY and BRIGHT, Circuit Judges.

       Associate Justice Tom G. Clark, United States Supreme Court, Retired, is sitting by designation.

   CLARK, Associate Justice.

Cleveland Umbaugh, appellant, stands convicted in the Circuit Court of Arkansas of the offense of kidnapping Joselyn Howard for the purpose of committing a felony. The evidence showed that Miss Howard had been kidnapped and transported to a secluded spot for the purpose of raping or otherwise physically assaulting her. At appellant’s trial, Birtie Smith, Umbaugh’s relative by marriage, testified that he had driven her to the same secluded spot some fifteen months earlier and had forced her to have sexual relations by threatening the life of her child who was accompanying them. Umbaugh claimed on direct appeal, as he claims in the present petition for federal habeas relief, that this testimony was highly inflammatory and prejudicial to him and that the error in admitting it reached constitutional proportions. However, the Supreme Court of Arkansas found no merit in the claim; it held that the testimony was admissible for the limited purpose of showing Um-baugh’s motive and intent in kidnapping and taking Miss Howard to the same area for the same purpose, which proof of intent was necessary to the charge of kidnapping with intent to commit a felony. We agree and affirm.

1. The Facts:

Umbaugh, a 22 year old married white man and his 19 year old white companion, Darrell Hurley, were sitting in Um-baugh’s parked automobile as Joselyn Howard, a 17 year old black high school girl, came by on her way home from school. Umbaugh asked Miss Howard if she wanted a ride, and when she refused, he got out of the car, seized her, forced her into the car, gagged her and locked the door. Meanwhile Hurley got in the back seat and Umbaugh drove to Wildcat Mountain near the Arkansas River. There he forced her to disrobe and raped her while she was in the front seat of the car. She lost consciousness for awhile, but after regaining it she found Umbaugh pulling her from the car. He blindfolded her and pushed her down a hill, threatening to throw her into the river. She escaped as both men chased her, throwing rocks at her and attempting to force her into the river. She eluded them and got help from the first house she reached.

Hurley testified against Umbaugh, corroborating Miss Howard’s story and admitting that he too had raped her. At trial Umbaugh admitted that he picked Miss Howard up and that he and Hurley took her to Wildcat Mountain where they both had sexual relations with her. He testified, however, that she willingly entered his car and drove with them to the mountain location and affirmatively consented to the sexual relations.

To prove the charge of kidnapping with intent to commit a felony, the State offered the testimony of Miss Howard, Hurley and Mrs. Birtie Smith, Um-baugh’s relative by marriage. Mrs. Smith testified that she was visiting her brother (the husband of Umbaugh’s sister) in Barling, Arkansas, in December 1968. Umbaugh offered to drive her and her three year old child to their home in Arkoma, Oklahoma. On the pretext of using a shorter route, Um-baugh drove them to Wildcat Mountain and there threatened to kill Mrs. Smith’s child unless Mrs. Smith had intercourse with him. When he actually began choking the child, Mrs. Smith submitted.

Umbaugh testified that in both instances, the women willingly accompanied him to Wildcat Mountain and willingly engaged in sexual relations with him. He admitted blindfolding Miss Howard and telling her that he Was going to throw her in the Arkansas River and drown her and that he threw rocks at her and ran after her. This was all in fun, he said, and was just to torment, tease and scare her.

2. Evidence of Similar Offenses Closely Related in Time and Place

It is, of course, axiomatic that evidence of other crimes may not be introduced merely for the purpose of showing the accused to be a man of bad character likely to commit the crime charged: Lovely v. United States, 169 F.2d 386, 388 (4 Cir. 1948). However, in the present case the evidence was admitted for the limited purpose of showing Umbaugh’s motive and intent in committing the offense charged, i. e., kidnapping with intent to commit a felony. As Judge Parker said in Lovely, supra, at 388, 390:

“It is true, of course, that evidence which has a reasonable tendency to establish the crime charged in the indictment is not rendered inadmissible merely because it establishes another crime; . . . Evidence of the commission of similar offenses closely related in time and place may, however, be relevant on such matters as identity, guilty knowledge, motive or intent where these are in issue ....
* * *
“While evidence of other similar offenses is held admissible for the purpose of establishing intent in cases of assault with intent to commit rape (Wigmore on Evidence, 2d Ed. Sec. 357), and evidence of other offenses of like character is admissible in prosecutions for crime involving a depraved sexual instinct (See Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85), the overwhelming weight of authority is that such evidence is not admissible in prosecutions for rape. The reason for the difference in the rule applicable is obvious. Other attempts to ravish have a tendency to show that an assault under investigation was made with like intent. Acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that character. The fact that one woman was raped, however, has no tendency to prove that another woman did not consent.” (Footnote omitted.)

It is well to bear in mind that Umbaugh was not charged with rape but with kidnapping for the purpose of committing a felony.

Wigmore teaches us that proof of other offenses is permissible for the purpose of establishing intent, citing as examples cases of assault with intent to commit rape. Wigmore 3rd Ed. (1940), § 357. Where the offense charged requires proof of some overt act, kidnapping here, together with a specific intent to commit another felony, Wigmore says that the propriety of using evidence of other similar acts to prove the necessary intent “cannot be doubted.” Id., at 266. McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1948); Gerlach v. State, 217 Ark. 102, 299 S.W.2d 37 (1950); Hearn v. State, 206 Ark. 206, 174 S.W. 2d 452 (1943); People v. Nye, 38 Cal.2d 34, 237 P.2d 1 (1951); State v. Cupit, 189 La. 509, 179 So. 837 (1938); State v. Spain, 3 N.C.App. 266, 164 S.E.2d 486 (1968).

The federal system has long recognized the same evidentiary rule. As early as Wood v. United States, 16 Pet. 342, 10 L.Ed. 987 (1842), the Supreme Court has permitted the introduction of other acts and doings of the party of a kindred character to illustrate or establish his intent or motive in the particular act in judgment. “Indeed,” the Court stated, “in no other way would it be practicable ... to establish such intent or motive, for the single act taken by itself may not be decisive either way; but when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty.” At 360. See Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85 (1944) (dictum), cert, denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589; Williams v. United States, 272 F.2d 40 (8 Cir. 1959); Kansas City Star v. Sees, 240 F.2d 643 (8 Cir. 1957); Owens v. United States, 201 F.2d 749 (4 Cir. 1953); Stein v. United States, 166 F.2d 851 (9 Cir. 1948); Blodgett v. United States, 161 F.2d 47 (8 Cir. 1947); Weiss v. United States, 122 F.2d 675 (5 Cir. 1941). The Supreme Court has also held that the Fourteenth Amendment leaves the states free to adopt rules of relevance in situations of this type. Lisenba v. California, 314 U.S. 219, 227-228, 62 S.Ct. 280, 86 L.Ed. 166 (1941).

Mrs. Smith testified that 15 months before the kidnapping of Miss Howard appellant Umbaugh took her to Wildcat Mountain and raped her. It is undisputed that Umbaugh also took Miss Howard to Wildcat Mountain and had sexual intercourse with her there. There was sufficient similarity between the two incidents to justify the trial judge’s allowance of Mrs. Smith’s testimony for the limited purpose of proving Umbaugh’s intent in kidnapping Miss Howard. Taking into account that the admission of evidence and the proper balancing of its relevance against its prejudicial effect is within the sound discretion of the trial court, Blodgett v. United States, supra, 161 F.2d, at 51, we think the District Court’s denial of habeas corpus relief was correct.

In conclusion, however, we add the caveat that not all evidence of prior crimes that has some bearing, however tenuous, on intent or motivation is admissible for that purpose. Discretion must be exercised on a ease by ease basis. As noted in the comment to Rule 404(b), Rules of Evidence for United States Court and Magistrates (proposed Nov. 20, 1972), 56 F.R.D. 183, 221:

* * * the rule [that evidence of other crimes or acts relevant to motive, intent, etc. need not be excluded] does not require that the evidence be excluded. No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence, in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.

The judgment is affirmed.


author: FEINBERG, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and Vantage Steamship Corporation et al., Intervenors, v. NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, Respondent.
    No. 2, Docket 72-2268.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 11, 1973.
    Decided Oct. 10, 1973.

      John H. Ferguson, Atty., N.L.R.B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel; William F. Wachter, Atty., Washington, D. C., on the brief), for petitioner.
    Martin C. Seham, New York City, (Surrey, Karasik, Morse & Seham, Fred C. Klein, and Susan A. Powers, New York City, on the brief), for intervenor Vantage Steamship Corp.
    Benjamin Schlesinger, New York City, (Sehulman, Abarbanel & Schlesinger, Howard Sehulman, New York City, on the brief), for intervenors Seafarers International Union of North America and Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dist.
    Charles Sovel, New York City (Abraham E. Freedman, New York City, on the brief), for respondent.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   FEINBERG, Circuit Judge:

For the fourth time in less than two years, the bitter rivalry between two maritime unions gives rise to knotty legal problems in this court. See also McLeod v. National Maritime Union, 457 F.2d 490 (2d Cir. 1972); National Maritime Union v. Commerce Tankers Corp., 457 F.2d 1127 (2d Cir. 1972) ; NLRB v. National Maritime Union, No. 72-2349 (2d Cir. June 18, 1973), enforcing in open court, National Maritime Union, 198 N.L.R.B. No. 112 (1972). On this occasion, the National Labor Relations Board seeks enforcement of its order holding that the National Maritime Union of America, AFL-CIO (NMU) and Commerce Tankers Corporation violated section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e), by enforcing a provision in their collective bargaining agreement so as to prevent Commerce from selling one of its vessels to Vantage Steamship Corporation. Commerce Tankers Corp., 196 N.L.R.B. No. 165 (1972). Vantage was and is party to a labor agreement with the Seafarers International Union of North America (SIU). Both Vantage and the SIU, the latter joined by an affiliate, have intervened in this proceeding in support of the Board. For reasons set forth below, we enforce the Board’s order.

I

The clause at issue is Article I, section 2 of the 1969 contract between Commerce and the NMU. This section, which is reproduced in the margin, provides in substance that if Commerce sells a ship to an American flag shipper not already under contract with the NMU, the ship will be sold with a crew provided by the NMU, and Commerce will obtain from the purchaser an undertaking to abide by the NMU contract. At the time of the agreement, Commerce owned two ships and in December 1970 sold one of them, the S.S. Thalia. Since the purchaser was a signatory to the standard NMU contract, no problem of inter-union rivalry arose.

However, later in the same month, Commerce agreed to sell its remaining vessel, the S.S. Barbara, to Vantage, which, together with its subsidiaries, operated a number of vessels whose employees were represented by the SIU. Very soon thereafter, both Commerce and Vantage found themselves caught between the competing demands of the two unions and frantic activity ensued in a variety of forums. Under pressure from the NMU, Commerce asked Vantage to give the undertaking required by Article I, section 2. The SIU threatened to strike all the vessels operated by Vantage if it stopped using the SIU hiring hall as the exclusive source of its unlicensed seamen. Vantage understandably refused to accede to the NMU-inspired demand, and threatened to sue Commerce if it did not sell the S.S. Barbara, as it had agreed to do. Similarly, the NMU refused to waive its contractual rights and promptly secured an arbitration award restraining Commerce from delivering the Barbara to Vantage without complying with the ship transfer provisions of the NMU contract. A month later, this award was confirmed and a preliminary injunction in favor of the NMU was issued by the United States District Court for the Southern District of New York. 325 F.Supp. 360. In the interim, Vantage filed a charge with the National Labor Relations Board alleging that both the NMU and Commerce were violating section 8(e) of the Act. In May 1971, also in the Southern District, the Board’s Regional Director sought an injunction under section 10(i) of the Act, 29 U.S.C. § 160(0, on the ground that he had reasonable cause to believe that the NMU and Commerce were violating section 8(e) of the Act. The injunction was denied. 329 F.Supp. 151. Appeals were taken both from this order and from the earlier Southern District order enjoining the sale of the vessel. The appeals were consolidated, and in March 1972 this court reversed both orders. 457 F. 2d 1127. Even before issuance of the 10(l) injunction, however, the Board proceedings went forward. In September 1971, the Trial Examiner found that the contract clause did not violate section 8(e) because it “is purely a work preservation clause.” In May 1972, the full Board unanimously concluded to the contrary, and this petition for enforcement of its order followed.

II

Now that the dust has settled somewhat, the precise legal question before us is simple to state but difficult to decide: Did the NMU violate section 8(e) of the Act by maintaining and enforcing Article I, section 2 (see note 1 supra) of the NMU-Commerce collective bargaining agreement? Section 8(e) makes it an unfair labor practice for a union and an employer

to enter into any contract or agreement, express .or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person

Before examining the judicial gloss on section 8(e) most pertinent here, we must note a preliminary problem. In finding a violation of the section in this case, the Board relied on the portion that makes it an unfair labor practice for a union (NMU) and an employer (Commerce) to agree to “cease doing business with any other person” (Vantage). It may at least be doubted whether an isolated sale of a capital item such as a ship comes within this language. It is arguable that such a transaction does not fit either the letter of the statute or the probable congressional purpose. However, although the Board faced the issue squarely and held that sales of ships occurred “in the normal course of doing business in the maritime industry,” NMU counsel, at oral argument, expressly disclaimed reliance upon this point. Accordingly, we will assume — without deciding for the future —that in the ship-sale transaction, Commerce and Vantage were “doing business” with each other and that the disruption of the transaction was a cessation of this.

Section 8(e) was enacted in 1959 as part of the Landrum-Griffin amendments to the National Labor Relations Act, which were designed to correct what many employers and members of Congress thought were statutory deficiencies in dealing with secondary boycotts. In Carpenters Local 1976 v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L. Ed.2d 1186 (1958) (Sand Door), the Supreme Court had held that an employer’s voluntary observance of a clause in his agreement with his employees not to handle nonunion goods was lawful under what was then section 8(b)(4)(A) of the Labor Act. 357 U.S. at 98-99, 78 S. Ct. 1011. Section 8(e) was designed “to plug this gap in the legislation by making the . . . clause itself unlawful.” National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 634, 87 S.Ct. 1250, 1263, 18 L.Ed.2d 357 (1967). But section 8(e) like other sections designed to curb secondary activity, does not shimmer with clarity, and it has been a source of much litigation. See The Developing Labor Law, note 6 supra, at 645-74.

The Board held in this case that because Article I, section 2 of the contract prevented Commerce from selling a ship to Vantage, the clause was prohibited as one

whereby an employer agrees, in substance, to cease or refrain from doing business with any other person within the meaning of Section 8(e) of the Act.

The NMU argues to us, as it did before the Board, that the clause was entirely proper because its objective was to preserve work for its members. Both parties, and the intervenors, support their positions with language from National Woodwork, supra, the only section 8(e) case decided by the Supreme Court.

National Woodwork involved a contract provision negotiated by the Carpenters Union under which its members would not “handle” doors which had been “fitted” prior to being furnished on the job. Such preeut and prefitted doors could be obtained from manufacturers, but doing so eliminated preparatory work which had been “traditionally performed in the . . . area by the carpenters employed on the jobsite.” 386 U.S. at 615-616, 87 S.Ct. at 1253. The Supreme Court held in a 5-4 decision that the contract clause was lawful because it was intended to protect and preserve work customarily performed by employees in the bargaining unit. The Court pointed out that Congress did not intend to obliterate the longstanding distinction between union pressures directed toward “primary” objectives and identical pressures aimed at “secondary” objectives. Id. at 620, 633-635, 87 S.Ct. 1250. According to the Court:

The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-á-vis his own employees.

Id. at 645, 87 S.Ct. at 1268. Putting it another way, the test is

whether, under all the surrounding circumstances, the Union’s objective was preservation of work for [the employer’s] employees, or whether the agreements . . . were tactically calculated to satisfy union objectives elsewhere.

Id. at 644, 87 S.Ct. at 1268. The Court surmised that such criteria would not always be simple to apply. Id. at 645, 87 S.Ct. 1250. Subsequent cases, cf. Journeymen Plumbers Local 636 v. NLRB, 139 U.S.App.D.C. 165, 430 F.2d 906 (1970); NLRB v. Milk Drivers Local 753, 392 F.2d 845 (7th Cir. 1968); A. Duie Pyle, Inc. v. NLRB, 383 F.2d 772 (3d Cir. 1967), cert, denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968), and this litigation prove the prophecy correct.

The NMU clause here was in a sense aimed at the labor relations of the primary employer, since it required Commerce to provide for continuation of the collective bargaining agreement, if the ship were sold. On the other hand, the clause was also “addressed” to the labor relations of the secondary employer, since it required Vantage to be or to become an NMU employer, to the extent of manning the Barbara. As to whether the clause was calculated to satisfy union objectives “elsewhere,” it can fairly be said both that the NMU objective of making sure that the unit remained under the protection of the NMU agreement was not an objective “elsewhere,” and that the union’s aim to convert any prospective purchaser to an NMU contract was.

Despite the closeness of these competing arguments, we are persuaded that the Board’s decision was correct. While the clause at issue here has aptly been described as introducing “a new twist to Section 8(e) litigation,” The Developing Labor Law 107 (1971 Supp.), the established distinction between “union standards” and “union signatory” subcontracting clauses is analogous. The former, which restrict subcontracting to those who observe certain pay scales and conditions of employment, are valid. Painters District Council 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534 (1964); Kennedy v. Sheet Metal Workers Local 108, 289 F.Supp. 65, 78 (C.D.Cal.1968); Teamsters Local 386, 198 N.L.R.B. No. 129 (1972). The latter, which permit unit work to be transferred to other employers only if they are under contract with the union, are usually held illegal. NLRB v. Milk Drivers Local 753, 392 F.2d 845 (7th Cir. 1968); NLRB v. Teamsters Joint Council 38, 338 F.2d 23, 28 (9th Cir. 1964); Meat & Highway Drivers Local 710 v. NLRB, 118 U.S.App.D.C. 287, 335 F.2d 709, 717 (1964). But cf. NLRB v. Sheet Metal Workers Local 28, 380 F.2d 827 (2d Cir. 1967) (no violation of section 8(e), although clause was a union signatory clause on its face, where six-month period for initiating unfair labor practice charge on basis of clause itself had expired and where specific instance of application of clause did not involve impermissible secondary objectives).

While the distinction between union standards and union signatory clauses may seem somewhat artificial, in the ordinary situation it serves at least two purposes: First, under a union standards clause, the union cannot insist that the secondary employees be organized by one of its locals. Thus, a competing union that has established similar wage scales and working conditions cannot be discriminated against through a work standards clause. Second, the courts’ insistence on union standards clauses makes it somewhat more likely that the union will not sacrifice the interests of employees in the primary unit in the hope of making gains on another front. To get a restrictive clause in the contract, the union may have to give up demands for other employee benefits. If the clause is a union signatory clause, the union has an interest, independent of the interests of the employees being represented, in furthering its own organizational ends or in protecting the interests of its other bargaining units. If the clause is a union standards clause, however, the union will have no guarantee that the prospective subcontracting firm’s employees will be members of the union. Thus, the likelihood that the clause is designed to foster the interests of the primary employees is somewhat greater.

The union standards-union signatory distinction suggests enforeement of the Board’s order. We will assume without deciding that the NMU could legitimately have insisted that Commerce sell no ships unless union standards were preserved. But for the NMU to bargain for a clause that gives it the right to continue manning the ship from its hiring hall goes beyond “work preservation” of the kind sanctioned in National Woodwork and the lower court cases in this area. The circumstances of the arrangement make it clear that the NMU’s motivation was to protect the union’s interest, rather than the interest of the work unit and its members. The practice of the shipping industry is for the purchaser’s union to man newly-acquired vessels. This practice accords with the fleet-wide representation rule prescribed for the industry by the Board. Moore-McCormack Lines, Inc., 139 N.L.R.B. 796, 798-99 (1962). The NMU, of course, has no thought of abandoning its claims on any ships that are sold to an NMU company. Under the clause in this case, however, the NMU extends its claim to ships leaving NMU companies. If transfers of ships are, as the Board found, fairly common in the industry, this practice will result, eventually, in NMU representation of virtually all the American-flag vessels in the trade or if the SIU retaliates, in constant disruption of the sort experienced here. Despite the NMU’s claims that it is merely attempting to avoid erosion of its place in a dying industry, the broader impact of its “work preservation” clause is to advance its own organizational goals at the expense of the SIU. Clear anti-SIU motivation appears in the record in this ease and was quoted in this court’s decision in National Maritime Union v. Commerce Tankers Corp., supra, 457 F.2d at 1127, 1130 n. 3. See also McLeod v. National Maritime Union, 457 F.2d 490 (2d Cir. 1972); National Maritime Union, 174 N.L.R.B. 216 (1969). Not surprisingly, the cases indicate that such an objective is not protected as primary. See NLRB v. Operating Engineers Local 825, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971); NLRB v. Milk Drivers’ Local 753, 392 F.2d 845, 848 (7th Cir. 1968); cf. NLRB v. Sheet Metal Workers Local 28, 380 F.2d 827, 831 (2d Cir. 1967) (absence of anti-rival union animus cited as one basis for concluding respondent union did not violate section 8(e)). Indeed, the elimination of inter-union rivalry with respect to employees of the same employer and the consequent diminution of conflicts which may result in work stoppages are among the principal goals which the Board seeks to attain through implementation of its fleet-wide representation rule. Moore-McCormack Lines, Inc., supra, 139 N.L.R.B. at 798-99.

A second relevant factor is that it is the NMU’s practice to remove all the seamen from a ship whenever the ship is sold. Therefore, the men working on the Commerce vessel will lose their jobs regardless of which union gains control of the ship. The only difference will be that under the NMU contract, the jobs will be available to seamen with seniority in the NMU hiring hall, while under an SIU contract the SIU hiring hall will be used. Thus, the beneficiaries of the union’s clause will not be those members now employed on the vessel, but the union as a whole. True, the NMU emphasizes that the Board assumed without deciding that the bargaining unit for Commerce employees could include seamen who may in the future be referred from the NMU hiring hall to Commerce. Interpreting this to mean that the Commerce bargaining unit could include all those entitled at any time to use of the NMU hiring hall, the NMU argues that the clause is clearly lawful because prior ease law establishes that a contractual provision designed to preserve work for employees in the bargaining unit is valid. We cannot accept this argument. While the cases may use the bargaining unit as a yardstick for the permissible scope of a work preservation clause, we are aware of none that do so where, as here, the suggested bargaining unit is many times larger than the actual work force of the primary employer and where the vast majority of the workers in the supposed unit have had no contact at all with the employer. Moreover, as the Board urges, if the NMU’s argument were correct, Congress would have had no reason to enact the proviso to section 8(e) which validates union signatory agreements with respect to job site work in the construction industry, since the hiring hall, upon which NMU’s argument is based, is apparently the central source of employment in the construction industry, Teamsters Local 357 v. NLRB, 365 U.S. 667, 672-673, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961), as it is in the maritime industry.

Petition for enforcement granted.

      . Article I, section 2, which is entitled “Sale and Transfer of Vessels,” provides:
      (a) The Company agrees with respect to any vessel which is presently under or may hereafter come under this Agreement, that if during the term of this Agreement said vessel is sold or transferred in any manner to any other business entity not covered by this Agreement for operation under United States flag (but not including a vessel which the Company bareboat charters and the charter is terminated), said vessel shall be sold or transferred with the complement of employees who either are or shall be provided by the Union in accordance with the terms of this Agreement, or such number as may be agreed upon between the Union and the transferee. The term “transfer” shall be construed to include any chartering of a vessel by the Company.
      (b) The Company obligates itself to obtain for the benefit of the Union a written undertaking with the Union to be executed by the business entity to which the vessel has been sold or transferred that for the full term of the Agreement all of its terms and provisions shall apply to said vessel except as herein-above provided and that said business entity will fully comply with all of the terms and provisions of this Agreement and any amendments thereto to preserve the jobs and job rights of the Unlicensed Personnel covered by this Agreement and to protect and maintain the wages, pension rights and other economic benefits and working conditions provided such personnel under this Agreement.

      . Under the NMU contract, of course, Vantage would have to use the NMU hiring hall.

      . Subsequently, Commerce commenced an arbitration against Vantage to enforce the contract of sale and, in addition, to require compliance with the NMU clause on the basis of an oral promise allegedly made by Vantage. The arbitrators 2-1 found for Commerce. On December 5, 1972, the award was enforced by Judge Gellinoff of the New York Supreme Court in an unreported opinion, and the Appellate Division 3-2 affirmed on the basis of that opinion. Vantage S.S. Corp. v. Commerce Tankers Corp., 41 A.D.2d 813, 342 N.Y.S.2d 281 (1973).

      . The Board’s decision and order was subsequently amended in May and in August 1972, without changing the result.

      . Whether the dust has similarly settled on the S.S. Barbara, we do not know. On the prior appeal to this court, Judge Waterman plaintively observed that the legal activity of the parties
      is in marked contrast to the inactivity of the subject of the contract, the tanker Barbara, which sits idly in a shipyard in Mobile for the lack of unlicensed seamen to man her.
      457 F.2d at 1130.

      . The statute does not use the phrase “secondary boycott,” and many secondary pressures are completely legal, as will be seen below. For a comprehensive, yet surprisingly compact, history of the law regarding secondary activity, see The Developing Labor Law 60A-90 (1971) (Supplements 1971 and 1972), a project of the Section of Labor Relations Law of the American Bar Association.

      . Indeed, as noted above, as a result of the NMU’s efforts to enforce the clause, Vantage was confronted with the threat of a strike by the SITJ on Vantage’s own vessels.

      . Relying on Sheet Metal Workers, the NMU argues that even if Article I, section 2 is analogous to a union signatory clause, the Board’s order is nonetheless erroneous because the clause was not illegally applied here. The argument has no merit; the NMU’s efforts to enforce the clause have interfered with the labor relations of a neutral employer, inciting the SIU to threaten to strike all Vantage ships. See note 6 supra.

      . See Note, A Rational Approach to Secondary Boycotts and Work Preservation, 57 Va.L.Rev. 1280, 1293 (1971).

      . Since the union standards-union signatory distinction was developed largely in cases involving subcontracting, it is arguably inappo-site here. Commerce’s sale of its last ship might be compared to an employer’s decision to close his factory and terminate his business altogether. But the Supreme Court has noted that the decision to terminate business is peculiarly a matter of management prerogative, Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 270, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965), and we cannot conceive that a union would be entitled to seek more far-reaching job protection in that situation than in the ordinary subcontracting case.

      . This decision contains language which, at first glance, may appear to settle the issue of the legality of Article I, section 2, but we there held only that the Regional Director had “reasonable cause to believe” that the clause violated § 8(e).

      . When the S.S. Thalia was sold to an NMU-affiliated employer, all of the ship’s unlicensed seamen were removed from their jobs and replaced through the NMU hiring hall.

      . The “construction industry” proviso to § 8(e) reads:
      Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work . . .
      29 U.S.C. § 158(e).


author: EUGENE A. WRIGHT, Circuit Judge: CHAMBERS, Circuit Judge KILKENNY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Charles STEPHENS, Defendant-Appellant.
    No. 73-1739.
    United States Court of Appeals, Ninth Circuit.
    Oct. 25, 1973.
    Monte E. Hester (argued), Tacoma, Wash., for defendant-appellant.
    J. S. Obenour, Asst. U. S. Atty. (argued), Tacoma, Wash., for plaintiff-appellee.
    Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Stephens appeals from his conviction after a jury trial for robbery of a national bank [18 U.S.C. § 2113(a) and (d)]. He contends that the trial judge’s comments to the jury denied him a fair trial and that there was insufficient evidence to support the verdict. Agreeing with the first contention, we reverse.

At the close of Stephens’ trial in the district court, the judge said:

“Now my comment. If he went out there and looked at that bank with the idea of whether or not to rob it, he certainly had no compunction about whether or not he should rob it, because that is what he was out there for. So if he had no compunction about whether or not he should rob it, I would conclude from what I have heard here that he must have, or that he did rob it. He certainly went out there to look at it for that purpose, he said so himself. That is the way I would calculate what transpired here, putting that together with the rest of the testimony. .
“Now you are the sole and exclusive judges of the facts. You make the determination as to what the facts are. You are not bound to follow anything I say at all, you can totally disregard anything I say, but I am entitled to express my opinion, and you can differ, and totally disregard it, because as I will tell you again, you are the sole and exclusive judges of the facts. But anyone who goes out and looks a bank over for the purpose of robbing it, and then admits that he robs it and then denies that he robbed it, I would conclude that he actually did rob it.
“All right, now again you being the sole and exclusive judges of the fact, it is up to you to make that determination.”

We have recently considered jury instructions given in two California state criminal cases in which trial judges stated their opinions that the defendants were guilty beyond a reasonable doubt. Davis v. Craven, 485 F.2d 1138 (9th Cir. 1973); Gonsior v. Craven, 449 F.2d 20 (9th Cir. 1971). The judge in each case cautioned the jurors that they were the exclusive judges of fact and should exercise independent judgment in weighing the judicial comment. We found no error of constitutional dimension in either case.

In both Gonsior and Davis we considered United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933), the only Supreme Court decision brought to our attention that involved a jury instruction comparable to the one with which we are presently concerned. The Court affirmed the reversal of a conviction because of the instruction given, stating that a judge’s power to express an opinion as to the guilt of the defendant exists, but that “it should be exercised cautiously and only in exceptional cases.” 290 U.S. at 394, 54 S.Ct. at 225. Such an exceptional case exists “where upon the undisputed and admitted facts the defendant’s voluntary conduct amounted to the commission of the crime defined by the statute.” Id. The Court held in Murdock that since the evidence was in conflict as to one element of the crime, the judge’s instruction, although tempered with a warning to the jury to act independently, was reversible error.

In Gonsior, we emphasized that Mur-dock was an appeal from a federal court conviction and that the Supreme Court did not base its decision on constitutional grounds “but obviously on its power to supervise procedures in the federal courts.” 449 F.2d at 22. Gonsior and Davis, on the other hand, involved petitions for habeas corpus based on state convictions. We held that the jury instructions given in those cases were not errors of constitutional dimension and we refused to impose the Murdock rationale on the states.

The present case, as in Murdock, is an appeal from a federal conviction. Similarly, this is not that exceptional case where the evidence against defendant is so overwhelming that his guilt is virtually undisputed.

At the time of the bank robbery, defendant was an escapee from the Washington State Penitentiary. There was evidence that he was involved in other criminal activity near the time and place of the robbery. The evidence of his involvement in this bank robbery, however, was far from overwhelming.

Perhaps the strongest evidence against defendant was his confession of the robbery to an FBI agent, a confession which he later repudiated. In addition, a bank employee recognized defendant as one who had been in the bank about the time of the robbery. His description of the clothing worn by defendant matched the description by one of the tellers of the clothing worn by the robber. However, neither the teller who was robbed, nor the one at the adjoining wicket, could identify defendant as the robber. Moreover, neither the handwriting on the demand note nor the fingerprints on the note were those of the defendant.

In light of the absence of overwhelming evidence of guilt, the judge’s comments to the jury may well have tipped the scales against defendant, denying him the fair trial to which he was entitled. The instructions to the jurors advising them that they were not bound by his opinion were not sufficient in this ease to cure the error.

It is well settled that a judge presiding at a trial in federal court may make comments on the evidence. He must carefully avoid prejudging the defendant, however, concentrating instead on making a fair effort to clear unanswered issues and point out inconsistencies. Bursten v. United States, 395 F.2d 976, 982 (5th Cir. 1968). Judicial comments must be aimed at aiding the jury’s fact finding duties, rather than usurping them.

We note that defense counsel took ho exception to the instructions given here. A timely instruction could have come only after the instructions and admonitions to the jury. Since it could not have resulted in an additional, curative instruction, it would have served no useful purpose. The absence of such an exception does not foreclose our consideration of the instructions given. United States v. Woods, 252 F. 2d 334, 336 (2d Cir. 1958).

Reversed and remanded.

CHAMBERS, Circuit Judge

(concurring) :

I concur reluctantly. I think the implications of United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933), require me to do so.

KILKENNY, Circuit Judge

(dissenting) :

Appellant’s reasons for the repudiation of his exceptionally detailed confession are so patently unbelievable that the Murdock guidelines should not apply. Certainly, the trial judge had a right to comment on the credibility of appellant’s testimony in connection with the repudiation and to tell the jury that he did not believe him. Here, appellant either did or did not rob the bank. His confession contained all of the essential elements of the crime of bank robbery. In this type of a case, as distinguished from the tax offense presented in Mur-dock, the issue of willfulness is not involved. It is my firm conviction that a federal judge, in commenting on the evidence, should have at least as much authority as the state judge. See Davis v. Craven, supra and Gonsior v. Craven, supra. I would affirm.

      . “It is well known, as a matter of judicial notice, that juries are highly sensitive to every utterance by the trial judge, the trial arbiter, and that some comments may be so highly prejudicial that even a strong admonition by the judge to the jury, that they are not bound by the judge’s views, will not cure the error.” Bursten v. United States, 395 F.2d 976, 983 (5th Cir. 1968).

      . We note that the American Bar Association Standards Relating to Trial by Jury, § 4.7 (1968), are in accord.
      “4.7 Summary of and comment on evidence.
      “(a) The court, at the time it instructs the jury, may summarize and comment on the evidence, provided the jury is clearly and unequivocally instructed that it is the exclusive judge of the facts, that it is to determine the weight of the evidence and the credibility of witnesses, and that it is not bound by the comments of the court.
      “(b) The summary and comment permitted in subsection (a) is governed by the following principles:
      “(i) The court may analyze the evidence, draw the attention of the jury to important portions of the evidence, and fairly and accurately summarize the contentions of both the prosecution and the defense.
      “(ii) The court may not suggest a verdict of guilty or not guilty, nor may the court directly express an opinion on the guilt or innocence of the defendant.
      “(iii) The court may not present any item- of evidence as a proven or undisputed fact unless the matter has ben affirm-tively conceded or is the subject of judicial notice.
      “(iv) The court may state the law and comment on matters in evidence bearing on the credibility of any witness, but not directly express an opinion that certain testimony is worthy or unworthy of belief.”

        Commentary:

      “Section 4.7(b) (i) provides that ‘the court may analyze the evidence’ and ‘draw the attention of the jury to important portions of the evidence.’ This is substantially the language used by the Supreme Court in Quercia v. United States, 289 U.S. 466 [53 S.Ct. 698, 77 L.Ed. 1321] (1933) in defining and circumscribing the power to summarize and comment. Section 4.7 (b) (i) also emphasizes that it is the responsibility of the court, in summarizing and commenting on the evidence, to ensure that he does not merely state the evidence of the prosecution or that of the defense. See Boatright v. United States, 105 F.2d 737 (8th Cir. 1939). It is the responsibility of the trial judge to fairly and accurately set forth the relevant evidence, both that which is favorable and that which is unfavorable to the accused. Byford v. United States, 185 F.2d 171 (10th Cir. 1950). His statements must not be argumentative, but impartial and dispassionate. Ibid. The trial judge must exercise restraint and be careful to be impartial in appearance as well as in fact. Holmes v. United States, 271 F.2d 635 (4th Cir. 1959.”


author: MOORE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William MARRAPESE and Nicholas Zinni, Defendants-Appellants.
    No. 192, Docket 73-1600.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1973.
    Decided Oct. 26, 1973.

      Andrew A. Bueei, Providence, R. I., for defendant-appellant Marrapese.
    John A. O’Neill, Jr., Providence, R. I., for defendant-appellant Zinni.
    Paul E. Coffey, Sp. Atty., U. S. Dept, of Justice, Washington, D. C. (Stewart H. Jones, U. S. Atty., D. Conn., Bridgeport, Conn., and Jeffrey M. Johnson, Sp. Atty., U. S. Dept, of Justice, Washington, D. C., on the brief), for plaintiff-appellee.
    Before KAUFMAN, Chief Judge, and MOORE and MANSFIELD, Circuit Judges.
   MOORE, Circuit Judge:

Appellants, William Marrapese and Nicholas Zinni, appeal from judgments of conviction of conspiracy (18 U.S.C. § 371) to violate the National Firearms Act (Count IV of a four-count indictment). The indictment had charged these appellants, together with Robert Joost and David Guillette, in three substantive counts, Count One, concealment and retention for their own use of 30 machine guns, knowing them to have been stolen, 18 U.S.C. § 641; Count Two, possession of unregistered firearms, 26 U.S.C. § 5861(d); Count Three, concealment of stolen firearms moving in interstate commerce, 18 U.S. C. § 922(j); and a conspiracy count, Count Four. All but the conspiracy count are academic upon this appeal because the indictment was dismissed as to Joost and Guillette, the jury found Zinni not guilty on the three substantive counts, and the trial judge granted Mar-rapese’s motion for acquittal notwithstanding the guilty verdict on the substantive counts. Left for our appellate consideration are appellants’ convictions on the conspiracy count.

The eleven errors asserted may be divided into two principal categories (1) insufficiency of the evidence, and (2) error in the admission of tape recordings and a transcript thereof. These alleged errors were brought before the trial court upon the motion for acquittal, notwithstanding the verdict for a new trial and upon a supplemental motion for a new trial heard upon allegedly discovered new evidence. Both motions were denied. The motion and supplemental motion have been made a part of the record on appeal.

On November 21, 1971, 30 machine guns (M-16) were stolen from the Westerly, Rhode Island National Guard Armory. On January 25, 1972, 29 of these 30 guns were recovered by government agents from underwater in a quarry in Oneco, Connecticut. They had been wrapped for protective purposes in plastic bags. They are not equipped with bolts necessary for their operation.

Upon this solid factual foundation was erected a factual and inferential superstructure.

Nearby in Oneco (approximately a mile and a half from the quarry), lived Daniel Lapolla, a figure of prime importance in the case. A few hours after the theft, a telephone call was placed from Zinni’s Cranston, Rhode Island, residence to Lapolla’s Oneco residence at an early morning hour, approximately 6:34 A.M. On November 22, 1971, a telephone call was made from Mar-rapese’s Cranston, Rhode Island, residence to Lapolla’s residence. These were the only calls made in November 1971 between these persons. Although the guns had been retrieved from the quarry by government agents in January, 1972, appellants were apparently unaware of this fact.

The next critical series of events occurred on March 31, 1972. Lapolla, as a government informer, had allowed himself to be equipped with a radio transmitter. On the receiving end were two government agents, Petrella and Smith.

Unmindful that the guns were no longer in the quarry, Lapolla, Marrapese and Zinni engaged in a conversation (tape recorded) concerning the “rifles.” The tapes and the transcript thereof (Govt. Exh. 10) best identify their participation in the conspiracy.

The evidence must be considered in the light most favorable to the Government, United States v. Barash, 412 F.2d 26, 31 (2d Cir.) cert, denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969). A jury might well have concluded that Marrapese on the tape was speaking of the rifles in a proprietory fashion, and not as one merely interested in the cash proceeds. The jury evidently did not credit Marrapese’s testimony that he was interested only in getting the debt Lapolla owed him paid. As for Zinni, he said only one sentence, “He wants to buy the rifles?” Yet once a conspiracy is shown, only slight evidence is needed to link another defendant with it, United States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969); Bradford v. United States, 413 F.2d 467, 469 (5th Cir. 1969). Furthermore, the telephone call from Zinni’s home to Lapolla’s home early in the morning the day the rifles were stolen, Zinni’s presence during the conversation between Marrapese and Lapolla concerning the guns, and his acknowledgment of the significance of the conversation provide enough proof for the jury to link him with the alleged conspiracy.

Appellants argue that the case should not have been submitted to the jury because there was no proof of an overt act. The trial judge in his opinion on the motion for acquittal n. o. v. and a new trial stated: “The concealment of the M-16 rifles, independently proven, is the very essence of the third overt act.” As to the claim by appellants of a variance, the court ruled that “Any variance between the indictment and the proof with respect to the third overt act was of minor significance;”. No claim of surprise was made during the trial. Nor was there any request for a continuance based on any alleged variance.

The argument that the tape recording of appellants’ conversations with. Lapolla was improperly admitted is without merit. Lapolla consented to wearing the transmitting device. The trial judge out of the presence of the jury passed upon its audibility. There was adequate testimony from which the jury could draw its conclusions as to voice identification and the accuracy of the transcript. The tape and transcript were properly admitted. For a thorough discussion of the law in this Circuit relating to the admissibility of tapes and transcripts, see United States v. Bryant, 480 F.2d 785, 789-791 (2d Cir. 1973).

As a basis for appellants’ supplemental motion for a new trial, appellants claim to have discovered a transcript of a statement by Lapolla in an unrelated New Jersey proceeding that he had taken numerous tapes “on my [his] own.” The trial court properly held that there was “nothing inconsistent between Lapolla’s statement to the New Jersey authorities and the testimony of Agents Smith and Petrella that they, and not Lapolla, made the recording introduced at trial a's Government’s Exhibit 11.”

As appellants correctly argue, resolution of the factual issues here depends on many inferences. The legal requirement is that there be a factual foundation from which the jurjr can draw these inferences. The government has met this burden here.

Judgments affirmed.

      . Shortly before the trial, Lapolla was murdered — a fact which was not disclosed to the jury.

      . Lapolla: He promised. Hey. Ahh. Get the door. I got a deal.
      Marrapese: What kind of deal?
      Lapolla: Ahh. (door closes) Met a guy in New York.
      Marrapese: Yeah.
      Lapolla: And ahh. You know the M-Sixteens those guys buried down there?
      Marrapese: Yeah.
      Lapolla: He thinks he can get the bolts.
      What should I say to him you want? (unclear) Can you handle it?
      Marrapese: What for, the rifles?
      Lapolla: Yeah.
      Marrapese: You know where the rifles are. Lapolla: Yeah. Well, let them go down and dive for them. What do I know. You think they could?
      Marrapese: Yeah. They’d go.
      Lapolla: All right, (unclear)
      Marrapese: They was thirty rifles, right?
      Lapolla: There were twenty-nine. The other one (unclear)
      Marrapese: There was one stolen. Yeah, (increased noise)
      Zinni: He wants to buy the rifles?
      Lapolla: Yeah. He thinks he can get the bolts.
      Marrapese: Tell him a hundred a piece. Lapolla: A hundred a piece. Will Bobby and Davie go down and get-em?
      Marrapese: We’ll get someone down there. Lapolla: Ha-ha. All right. Yeah. That’s all.
      Marrapese: No it ain’t. You’re going to come down and transport them, Danny.
      Lapolla: I ain’t gonna handle-em.
      Marrapese: He going to come down and pick-em up?
      Lapolla: Yeah. Let him come down, (unclear) It’s between you and the other guy. You know?
      Lapolla: They got the ahh (unclear) Bobby. Marrapese: Yeah. I’ll see him about it Monday.
      Lapolla: Swell. And ahh. How will I know?
      Marrapese: Look. When you going to be here? When? Tuesday?
      Lapolla: Yeah.

        Marrapese: Yeah. Tell the guy O.K.
      Lapolla: Cause I’ll see him Saturday again. (unclear)
      Marrapese: When are you going to see the guy? Saturday?
      Lapolla: Yeah.
      Marrapese: Tell Mm, ahh. It will take about a week to get them.
      Lapolla: About a week to get them?
      Marrapese: Yeah. Ahh. It’s a little chilly right now.