author: PER CURIAM.

text:
    Ethel IMEL et al., Plaintiffs-Appellants, v. ZOHN MANUFACTURING COMPANY, formerly known as Gross Wholesale Tailors, Inc., a Colorado corporation, et al., Defendants-Appellees.
    No. 72-1592.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 29, 1973.
    Decided June 21, 1973.
    Rehearing Denied Aug. 2, 1973.
    Craig A. Murdock, Denver, Colo., for plaintiffs-appellants.

      Robert Bugdanowitz, Denver, Colo., for defendant-appellee Zohn Manufacturing Co.
    Edward J. Scheunemann, Denver, Colo., for defendants-appellees Local 263, Amalgamated Clothing Workers of America and Midwest Regional Joint Board.
    John A. Criswell, Englewood, Colo., for defendant-appellee Amalgamated Clothing Workers of America, AFL-CIO.
    Before HILL and BARRETT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Eastern District of Michigan, sitting by designation. •

   PER CURIAM.

The controversy before us arose between three plaintiff-employees and four defendants: their employer, Zohn Manufacturing Company (Zohn), Local 263, Amalgamated Clothing Workers of America, the plaintiffs bargaining representative (Local 263), Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO (Joint Board), and Amalgamated Clothing Workers of America, AFL-CIO (Amalgamated). Jurisdiction was asserted, in part, under Section 301 of the Taft-Hartley Act (29 U.S.C. § 185). The matter comes to us upon the dismissal of the complaint resulting from rulings upon Motions for Summary Judgment filed by defendant Unions and a Motion to Dismiss incorporated in defendant Zohn’s responsive pleading to the action.

The complaint embodies four separate claims for relief in a court action, despite the existence of a contractual grievance remedy, as well as constitutionally-based internal appeal procedures within the unions themselves. The controversy stems from defendant Zohn’s alleged failure to pay the wage claims of the plaintiffs. Zohn had entered into a collective bargaining agreement with Local 263 and the Joint Board covering plaintiffs’ wages and working conditions. It had allegedly breached the agreement, specifically by underpaying the plaintiffs. Plaintiffs thereupon entered a grievance but, it is alleged by plaintiffs, Zohn, Local 263, and the Joint Board improperly and ' unlawfully refused to process plaintiffs’ wage grievance through the grievance settlement and arbitration procedures set up in the collective bargaining agreement, despite plaintiffs’ demands therefor. This refusal, it is alleged, resulted from improper concert of action among the defendants, malicious and willful in its motivations.

In Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842 (1967) the Supreme Court held that employees subject to a union contract might institute suit against labor unions in those situations wherein it was claimed that the employer had violated the provisions of the union contract and the union had violated its duty of fair representation to the employees. It was further held that an employee charging a union with violating the duty of fair representation would be not be required to exhaust the contract’s grievance procedures, provided that under the contract the union has the sole power to invoke those procedures and that the employee has been prevented from utilizing these procedures through the union’s wrongful conduct, the circumstances indicating that the union’s conduct was “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, supra, at 190, 87 S.Ct. at 916.

The defendant Unions before us each filed a motion for summary judgment, supported by affidavit and other documentary evidence, setting up, among other grounds, that plaintiffs had failed to exhaust the internal union remedies granted them by the constitutions of the unions involved.

The remedies provided under the constitution and by-laws of the Joint Board and Amalgamated are straightforward and comprehensive. The plaintiffs are members of Local 263. As such they are bound by the constitution and by-laws of the Joint Board and Amalgamated, under which Local 263 is an affiliated and subordinate body. Furthermore, as such members they have both the “obligations and privileges” enunciated in the constitution and bylaws.

In addition each member authorizes “the Amalgamated and/or his local union or joint board” to act as his agent in order to “represent and bind him in the presentation, adjustment and settlement of all grievances.”

It is also provided that each member has the right of appeal set forth in Art. XII “from any action or failure to act of his local union or joint board in the presentation, adjustment and settlement of any such grievance, complaint or dispute . . .,” in the exercise of any local or joint board’s original or appellate jurisdiction under that Constitution. As we read the instruments before us we take it that the appellate procedure is to appeal first to the local level, then to the joint board, then to Amalgamated itself.

However, Section 2 of Article XII (the Appeals Article) permits a direct appeal to the General Executive Board of Amalgamated without undertaking the intermediate steps. And, finally Section 5 of Article XII specifically requires any member to exhaust the appeal procedure provided by the Constitution before instituting “any civil action, suit or proceeding in any court against the Amalgamated, any of its local unions or joint boards . . . ”

Such exhaustion of the internal appeal procedures was not had in this case. The reasoning therefor was that the officers and agents of Local 263, and the Joint Board, had prior knowledge of the facts involved in the complaint. However that may be, the fact remains that the officers of Amalgamated were in no way involved, no charges had been made against them, there is neither allegation nor proof that resort to them would have been futile, and there appears on the record before us no justification for plaintiffs’ failure to appeal to Amalgamated itself, as authorized by Article XII, Section 2, supra, of the Constitution.

We recognize that here we deal with a question of the exhaustion of internal constitutional remedies, as distinguished from contractual remedies, such as arbitration. Differences are, of course, present, thus the one remedy may arise by contract, the other by membership. Yet there is a basic, underlying principle involved here, upon which much of labor-management harmony turns, namely, staying the hand of “judicial interference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own internal affairs.” Brady v. Trans World Airlines, 401 F.2d 87 (3rd Cir. 1968), cert, den., International Ass’n of Machinists v. Brady, 393 U.S. 1048, 89 S. Ct. 680, 21 L.Ed.2d 691 (1969). Here we find in the governing documents of the Unions provisions for careful review of grievance procedures, including an expedited appeal to the General Executive Board of Amalgamated. The by-passing of the carefully enunciated review measures, absent a clear and positive showing of futility, can only promote disharmony in the field of labor-management relations. Whether a union’s "opportunity to resolve disputes concerning its own internal affairs” arises and is accomplished through contractual or constitutional means should not control attainment of the objective sought. A reasonable opportunity should be afforded in either event. Such, in fact, was the holding in the case of Harrington v. Chrysler Corporation, 303 F.Supp. 495 (E.D., Mich.1969) where it was held that,

“It appears from the facts presented that the extra-judicial remedies available to plaintiff Harrington are two-fold in nature: (1) those procedures set forth in the collective bargaining agreement between Local Union 412 and Chrysler Corporation, and (2) those intra-union appeal procedures set forth in Article 32 of the Constitution of the International Union. It is no excuse that it would have been futile to present plaintiff’s grievances to the local officers. The plaintiff was obliged to comply with the intra-union appeal procedure; and absent such compliance, the courts lack jurisdiction to hear the complaint.” [cited cases omitted]
“In the case at bar, plaintiff Harrington sought redress only by means of the grievance machinery set forth in the local collective bargaining agreement between Local Union No. 412 and Chrysler Corporation. He did not avail himself of the intra-union appeal procedures to challenge Local 412’s alleged arbitrary action in refusing to represent the plaintiff with respect to the grievance. The intra-union appeal procedures set forth in Article 32 of the Constitution of the International Union require the aggrieved member to submit his appeal in writing within a specified time period following the alleged action and further require that all remedies and appeals under the International’s bylaws be exhausted prior to commencement of any appeal to a civil court or government agency for redress.” 303 F.Supp. at 497.

To the same effect see Bsharah v. Eltra Corporation, 394 F.2d 502 (6th Cir. 1968); Dill v. Wood Shovel & Tool Co., 68 LC § 12,685 (D.C.Ohio 1972); Harris v. Continental Aviation & Engineering Corp., 67 LC § 12,393 (D.C.Ohio 1972); See v. U. A. W. Local 417, 69 LC § 13,165 (D.C.Mich.1972).

It is clear that in the matter before us there has thus been a failure to exhaust the internal remedies available to all members under the Constitution, such exhaustion being a prerequisite to the institution of any civil action. The trial court’s grant of defendant Union’s motions for summary judgment accordingly is affirmed.

With respect to defendant Zohn, the employer, the case stands on a different footing. The gravamen of the plaintiffs’ cause of action is the alleged corrupt and concerted failure of defendant unions and the employer to undertake and carry through to completion an honest and fair arbitration of their wage claims, properly initiated by them, but “at the higher stages” of the grievance and arbitration procedure “frustrated by the concerted action of Zohn and the defendant unions,” citing Vaca v. Sipes, supra. Zohn replies that the agreements between the unions and the company resulting in an abandonment of arbitration of the wage claims were honest and fair, and, moreover, within their permissible power to screen grievances, also relying on Vaca v. Sipes, supra. Zohn urges, as well, that plaintiffs’ allegations of wrongdoing are completely conclusionary and without factual support. Thus, with respect to plaintiffs’ allegations that defendants had agreed that the grievances submitted by plaintiffs “would not be processed in accordance with the provisions” of the collective bargaining agreement, Zohn argues that no details are provided as to the procedures in the collective bargaining agreement, “or in what manner the parties agreed to the contrary,” asserting that “a litigant must give the Court some idea of the basis of filing an action” other than mere conclusions.

The obstacles to affirmance of a dismissal of a complaint on such grounds are formidable. The pleading deficiencies, should such they be, are not fatal to plaintiffs’ cause of action. Where a complaint gives fair notice of the grounds for the plaintiffs’ claims, and it cannot be said with certainty that proof of any facts in support thereof would entitle the plaintiffs to no relief, it should not be dismissed for uncertainty. 2A Moore’s Federal Practice, fl 12.08, at 2271-2285 (2d ed. 1968). The pre-trial and discovery devices now available offer sufficient protection against ambush at trial. The Supreme Court’s ruling in Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970) makes this clear, if any doubt based upon other precedents, had theretofore existed. The Court held,

“Although the complaint was not as specific with regard to union discrimination as might have been desirable, we deem the complaint against the union sufficient to survive a motion to dismiss. As the Court of Appeals indicated, ‘where the courts are called upon to fulfill their role as the primary guardians of the duty of fair representation,’ complaints should be construed to avoid dismissals and the plaintiff at the very least ‘should be given the opportunity to file supplemental pleadings unless it appears “beyond doubt” that he cannot state a good cause of action.’ ” 397 U.S. at 27, 90 S.Ct. at 772.

The plaintiffs here, as well, should be given a similar opportunity.

The dismissal of the Complaint is accordingly reversed and the case remanded. As we have held heretofore, the grant of the motions for summary judgment is affirmed, but the grant of Zohn’s Motion for Dismissal is reversed and upon remand plaintiffs should be allowed to amend their complaint to allege circumstances supporting their assertion that attempts to pursue their grievances would be futile.

Under the views we have taken of the case we do not reach the additional issues presented.

So ordered.

Affirmed in part and reversed in part for further consideration not inconsistent with this opinion.

      . After argument upon the motions the complaint was dismissed. The trial court’s written Judgment of Dismissal dated July 7, 1972, was based upon the grounds that “applicable administrative procedures available to plaintiffs have not been exhausted.” A later Judgment of Dismissal dated July 20th varies somewhat in phraseology, referring to failure to follow “administrative procedures adopted in the collective bargaining agreement,” but in view of the court’s holding from the bench that plaintiffs “must follow and complete the administrative procedures provided by the Constitution, bylaws of their Union” (App. Yol. I, p. 22) we do not regard the differences in phraseology as material, cf., Texaco, Inc. v. Holsinger, 336 F.2d 230 (10th Cir. 1964).

      . Arbitration of plaintiffs’ job-classification issue had been agreed to “by the Company and your Union” (EX. G) but plaintiffs insisted upon arbitration of the wage issue as well (Ex. H.)

      . Art. VII, Amalgamated Constitution.

      . Id. Art. IX, Sect. 3.

      . Id. Art. IX, Sect. 9b.

      . Such was conceded at oral argument by plaintiffs’ counsel: “It is true we do not suggest that any employee or officer of Amalgamated as such had anything to do with the events which led to the filing of this Complaint.” Record, Vol. I, p. 11.

      . cf. exhaustion requirements in the Landrum-Griffin Act, 29 U.S.C. § 411.

      3. Paragraph X, Complaint.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harvey Allen WARD, Defendant-Appellant.
    No. 72-3040.
    United States Court of Appeals, Fifth Circuit.
    July 3, 1973.
    Rehearing Denied July 24, 1973.

      John McGuigan, Atlanta, Ga. (Court-Appointed) for defendant-appellant.
    John W. Stokes, U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before AINSWORTH, DYER and IN-GRAHAM, Circuit judges.
   DYER, Circuit Judge:

Ward appeals from a judgment of conviction of interstate transportation of forged traveler’s checks in violation of 18 U.S.C.A. § 2314. He argues that he was denied an opportunity to impeach two key Government witnesses, and that the United States Attorney’s final argument to the jury improperly commented on Ward’s failure to take the stand. We affirm.

We can quickly dispose of Ward’s first point. He argues that he was not allowed to question two key witnesses about whether they had recently been convicted of armed robbery. His position is that, even though the “convictions” had not yet been through the appellate process, our recent decision in United States v. Franicevich, 5 Cir. 1973, 471 F.2d 427, permits such convictions to be used for impeachment purposes. A reading of the record, however, discloses no convictions that fall within the Franicevich rule.

Six months before Ward’s trial, the two witnesses involved had pleaded nolo contendere to armed robbery charges in North Carolina. The North Carolina court accepted their plea, but, at the time of Ward’s trial, had not imposed sentence. On this record, the district court quite properly refused to allow impeachment. First, the Supreme Court has stated that, at least for certain purposes, it is the judgment of conviction and sentence, and not the tender and acceptance of the nolo contendere plea, that constitutes the “determination of guilt.” Lott v. United States, 1961, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940. Secondly, even if we were to conclude that the mere acceptance of the plea was a sufficiently final conviction for impeachment purposes, Ward’s argument would still founder on this Circuit’s rule that a conviction based on a nolo contendere plea cannot be used for impeachment in a different proceeding. Piassick v. United States, 5 Cir. 1958, 253 F.2d 658; Mickler v. Fahs, 5 Cir. 1957, 243 F.2d 515; see Kilgore v. United States, 5 Cir. 1972, 467 F.2d 22; United States v. Driscoll, 5 Cir. 1972, 454 F.2d 792.

Ward’s argument concerning the United States Attorney’s comments in his closing remarks also leaves us unconvinced that reversible error occurred. This conclusion should not be taken as even tacit approval of the tactics of the United States Attorney. Instead our conclusion is reached by considering the combined effect of the inaction by defense counsel and the prompt action by the district court.

During the Government’s summation Ward’s counsel made only two objections. Each of these was directed not at an improper comment on Ward’s failure to take the stand, but was an attempt to show that there was no testimony or reasonable inferences therefrom which would support that portion of the Government’s argument immediately preceding the objection. Additionally, because none of the questioned comments by the United States Attorney were made until after these two objections, it cannot be said that Ward’s counsel made an immediate objection to the comments. The first mention of this issue came after the conclusion of the summation and was in the form of a motion for a mistrial. This was too late.

This Court has considered this precise problem before and has concluded that,

[i]t is not sufficient to move for a mistrial after all the arguments are in. The purpose of requiring objections to be made while the argument is in progress is to give counsel making the argument a chance to withdraw or explain it and the court a chance to exclude it from the jury’s consideration.

Fogarty v. United States, 5 Cir. 1959, 263 F.2d 201, 204, cert. denied, 360 U.S. 919, 79 S.Ct. 1437, 3 L.Ed.2d 1534. We cautioned in Samuels v. United States, 5 Cir. 1968, 398 F.2d 964, 967, cert. denied, 1969, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566, that the rule requiring a timely objection does not necessarily require an objection “to a comment upon the refusal of a defendant to testify at the precise moment such comment is made.” Nevertheless, under the circumstances in our case we conclude, as we did in Samuels, that the defense counsel had ample opportunity to object to the questioned comments when made and that no viable excuse has been advanced for not doing so. As a result, Ward is entitled to relief only if he can show that the remarks, in the context of the trial, amounted to plain error under Rule 52(b), Fed.R.Crim.P. Samuels, supra.

That the trial was not infected with plain error is made clear by examining the precautionary and curative instructions given by the trial judge. As would be expected, in the district court’s opening remarks to the jury he told them that arguments of and questions by counsel are not evidence, and that the defendant need not present any evidence but may rest on the presumption of innocence. Furthermore, after the closing arguments, the court in its charge to the jury stressed: (1) that the defendant had no duty to call witnesses or present evidence; (2) that the defendant need not take the stand and that the failure to do so does not raise any presumption; (3) that the statements and arguments of counsel are not evidence; and (4) that the presumption of innocence remains with the defendant throughout the trial.

We need not decide whether these general instructions alone would be sufficient to protect Ward’s right to a fair trial because the district court, without a prior objection by Ward’s counsel, gave an additional curative instruction in the middle of the United States Attorney’s remarks. This is particularly significant because it came immediately after one of the comments now questioned by Ward; in fact the instruction came directly after the only comment which was referred to by Ward’s counsel in his subsequent motion for a mistrial.

We are aware that in certain circumstances no amount of carefully drawn curative instructions can correct the damage done by extensive and repetitious comments on a defendant’s failure to take the stand. See e. g., DeLuna v. United States, 5 Cir. 1962, 308 F.2d 140. No circumstances similar to those found in DeLuna are present in this case, however.

We therefore conclude that the district court acted correctly, and that it amply insulated from jury consideration Ward’s failure to take the stand and the United States Attorney’s comments thereon.

Affirmed.

      . MR. TAYLOR [United States Attorney] : . . . . There is no way we can pin anything on [Mr. Rosebury] unless Mr. Ward wants to get up and tell the whole story himself.
      THE COURT: Mr. Taylor, I think you are going far beyond inferences and deductions that the jury can draw. Now, I allowed you to do it the first time but I think you are arguing matters that are too conjectural and I will instruct you, ladies and gentlemen, that you will disregard those comments of counsel and argument and remember that only you are the ones who will determine the facts as you find them to be and it is up to you to determine whether or not you believe or disbelieve the witness. You are the sole judges of the credibility of every witness who has testified in this case.


author: FIELD, Circuit Judge:

text:
    John Carl ENGLISH, Appellee, v. VIRGINIA PROBATION & PAROLE BOARD, Appellant.
    No. 72-1710.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 6, 1973.
    Decided June 19, 1973.
    Robert E. Shepherd, Jr., Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellant.

      Richard E. Crouch, Arlington, Va. (Philip J. Hirschkop, Alexandria, Va., T. David Thelen, Staff Counsel, American Civil Liberties Union of Virginia Foundation, Richmond, Va., and Prof. Harvey E. Bines, Charlottesville, Va., on brief), for appellee.
    Before BUTZNER and FIELD, Circuit Judges, and MURRAY, District Judge.
   FIELD, Circuit Judge:

On May 12, 1970, John Carl English was convicted in the Circuit Court of Virginia Beach, Virginia, upon an indictment which charged that on or about January 13, 1970, he did “unlawfully, wilfully and feloniously maintain or keep a common nuisance, to-wit; a dwelling house or building resorted to by narcotic drug addicts, for the purpose of using narcotic drugs and/or which is used for the illegal keeping or selling of the same” in violation of Section 54-509 of the Code of Virginia (1950), as amended. The Supreme Court of Appeals of Virginia refused to grant a writ of error and certiorari was denied by the United States Supreme Court by order of June 7,1971.

Thereafter, English filed a complaint in the district court in which he challenged the constitutionality of the Virginia statute under which he had been convicted and asked that the court enter a judgment declaring Section 54-509 unconstitutional and, additionally, prayed for habeas corpus relief. Treating the case solely as one for habeas corpus relief, the district court, 341 F. Supp. 714, concluded that Section 54-509 was violative of the due process clause of the Fourteenth Amendment, granted petitioner’s motion for summary judgment and ordered that he be released from custody. Incident to his disposition of the case the district judge also held that the classification of marijuana as a narcotic drug in the definitional statute, Virginia Code Section 54-487 (14), contravened the equal protection clause of the Fourteenth Amendment. We disagree with the district court’s conclusions in both respects and reverse.

Section 54-509 became a part of the statutory law of Virginia in 1934 when the Virginia General Assembly enacted the Uniform Narcotic Drug Act. It was taken verbatim from Section 13 of the Uniform Act and read as follows:

“Common Nuisances. — Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance. No person shall keep or maintain such a common nuisance.”

The Uniform Act which was proposed by the Commissioners on Uniform Laws was adopted with some local modifications in every state except California and Pennsylvania, and also was enacted in the District of Columbia, Puerto Rico and the Virgin Islands. Although the Uniform Act was in almost nationwide effect for three decades there appear to have been only two reported cases dealing with Section 13, the common nuisance section. Both of these cases were in the District of Columbia and both upheld convictions under the statutory section in question. United States v. Williams, 93 U.S.App.D.C. 120, 210 F.2d 687 (1953), Gantt v. United States, 267 A.2d 350 (D.C.Ct. of App.1970). It is of some significance that in neither of these cases was there any constitutional challenge to the statute.

In holding the statute to be unconstitutionally vague, the district judge referred to Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), for the proposition that a crime, and the elements constituting it, must be so clearly expressed in a statute that the ordinary person can intelligently choose in advance the course which it is lawful for him to pursue. He then focused upon the words and phrases “any place whatever”, “resorted to”, “keeping” and “keeping or maintaining”, and concluded that they are open to such a wide and ambiguous range of construction that the statute was constitutionally unacceptable. In this critical scrutiny and analysis of the statutory phraseology, the district court ignored the fact that such language has acquired a well-defined meaning through the years with respect to common nuisances under both the common law and statutory enactments. The classic language which appears in the statute was long ago analyzed and defined in State v. Main, 31 Conn. 572 (1863) with respect to a party who “did unlawfully keep and maintain * * * a house of bawdry and ill-fame,” and in Commonwealth v. Kimball, 104 Mass. 465 (1870), involving a charge of “keeping and maintaining a tenement in Lynn as a liquor nuisance.” In Commonwealth v. Patterson, 138 Mass. 498 (1884), Mr. Justice Holmes, then a Justice of the Supreme Judicial Court of Massachusetts, recognized that such phraselogy had acquired a well-defined meaning, stating:

“A building cannot be said to be 'used’ for the illegal sale of intoxicating liquors, within the meaning of the Pub.Sts. c. 101, § 6, which makes it a nuisance, nor can the proprietor be said to ‘keep or maintain such common nuisance’ within § 7, on the strength of a single casual sale, made without premeditation, in the course of a lawful business. Not only do the words ‘used’ and ‘keep and maintain’ import a certain degree of permanence, but the same idea is usually a part of the conception of a nuisance.”

While, of course, the statutes considered in these somewhat venerable cases were directed at activities less sophisticated than the twentieth century use of narcotics, this change in the subject matter does not render the operative phraseology either vague or ambiguous. The Court in Connally, supra, stated:

“ [I]t will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain rested upon the conclusion that they employed words or phrases having * * * a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ.” 269 U.S. at 391, 46 S.Ct. at 127.

In our opinion the language of the statute under consideration which was seized upon by the district court as unconstitutionally vague has a well-settled meaning in the law and passes muster under the Fourteenth Amendment.

The district court also noted that the statute failed to specify whether intent or scienter was necessary to sustain a conviction thereunder, and observed that conceivably a party could be convicted without knowledge on his part that narcotics were being used on his premises. The answer to this criticism is that the Virginia trial courts have construed the statute to require scienter and that the indictment in the present case charged that English “did unlawfully, wilfully and feloniously maintain or keep a common nuisance” (emphasis added). Additionally, it would appear that scienter has long been recognized as an integral element of a criminal offense under the law of common nuisances. See State v. Main and Commonwealth v. Kimball, supra.

As heretofore stated, the district court also held that the legislative classification of marijuana as a narcotic drug in Section 54-487(14) was violative of the Equal Protection Clause. In so holding, the court stated that the statute classified marijuana as addictive “although this is contradictory to the vast weight of medical authority on the subject which holds that it is not addictive and common knowledge of this fact is well established.” No evidence was presented on this subject but the district judge concluded that he had the authority to rely upon the “current writing of authorities” in this field. A number of the articles and reports relied upon by the district court are listed in the footnotes of his opinion. Nevertheless, controversy does exist with respect to marijuana, and reliance on the writings cited by the district court was not an appropriate basis for decision.

It is axiomatic that a legislature is free to adopt any classification it deems appropriate to promote the general welfare so long as the classification bears a reasonable relation to a proper legislative purpose. The breadth of legislative discretion and authority and the deference to be accorded to the rationality of legislative classification was recognized in McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Speaking for the Court in that ease, Chief Justice Warren stated:

“The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.”

This language in McGowan recognized the oft stated principle that “[a] statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.” Metropolitan Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070 (1935). We think it to be beyond question that the objectives of the Uniform Narcotic Drug Act fall well within the framework of the standard enunciated in Jacobson v. Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 363, 49 L.Ed. 643 (1905):

“If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

Finally, we note that the courts which have had occasion to deal with the question have almost uniformly upheld the constitutionality of the classification of marijuana as a “narcotic drug.” People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); People v. Glaser, 238 Cal.App. 2d 819, 48 Cal.Rptr. 427 (Dist.Ct.App. 1965), cert. denied 385 U.S. 880, 87 S.Ct. 164, 17 L.Ed.2d 107 (1966); Gonzales v. State, 168 Tex.Crim. 49, 323 S.W.2d 55 (1959); State v. Navaro, 83 Utah 6, 26 P.2d 955 (1933). The foregoing cases are among those collated in one of the articles cited in the opinion of the district court, Bonnie & Whitehead, The Forbidden Fruit and The Tree of Knowledge : An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Va.L.Rev. 971 (1970). In this exhaustive and somewhat critical review of the _ marijuana problem, the authors state: “We conclude that there is not yet sufficient uniformity of medical opinion to overcome any presumption of rationality attaching to marijuana legislation. Those courts directly confronting the issue have responded correctly, regardless of the precise constitutional framework within which they have worked.” (p. 1133) Assuredly, the legislative classification here in question was not so arbitrary and unreasonable as to deny English the equal protection of the law.

Concluding as we do that the district judge erred in holding the Virginia statute unconstitutional, the order granting habeas corpus relief to English is reversed.

Reversed.

      . The Uniform Narcotics Drug Act, including Section 54-509, was repealed in 1970 when the General Assembly of Virginia enacted the Drug Control Act.

      . The complaint designated the Attorney General, the Director of Corrections, and the Superintendent of the Virginia State Penitentiary as parties defendant. However, English had already been released on parole when the opinion of the district court was filed, and an order was entered substituting the members of the Virginia Probation and Parole Board as respondents.

      . It is interesting to note that similar language was used in the common nuisance section of the Volstead Act. National Prohibition Act, October 28, 1919, c. 85, Title II, Section 21; 41 Stat. 314. See United States v. Dowling, 278 F. 630 (S.D.Fla.1922).

      . This section which also adopted the language of the Uniform Act read as follows :
      “ ‘Narcotic drugs’ mean coca leaves and opium, cannabis and isonipecaine and every substance not chemically distinguishable from them.”

      . The statute does not, in fact, classify marijuana as addictive; it merely in-eludes it in the classification of “narcotic drugs.”

      . Summary disposition of the case by the district court was based only upon the complaint, the answer and exhibits filed therewith.

      . See English v. Miller, 341 F.Supp. 714, 717, nn. 2 & 3 (E.D.Va.1972).


author: WIDENER, Circuit Judge:

text:
    Robert FRANCIS et al., Appellees, v. The CHAMBER OF COMMERCE OF the UNITED STATES, Appellant.
    No. 72-1537.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 6, 1973.
    Decided June 20, 1973.

      Jeffrey S. Goldman, Chicago, ini'; . ton A. Smith, Gen. Counsel, O. F. Wenzler, Labor Relations Counsel, Chamber of Commerce of the United States of America, Washington, D. C., Gerard C. Smetana, Lawrence M. Cohen, Lederer, Fox & Grove, Chicago, 111., William A. Grimes, Ober, Grimes & Shriver, Baltimore, Md., Alan Raywid and Cole, Zylstra & Raywid, Washington, D. C., on brief), for appellant.
    C. Christopher Brown, Baltimore, Md., for appellees.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

The United States Chamber of Commerce appeals to this court after being denied leave to permissively intervene in litigation before a three-judge district court in Francis v. Davidson, 340 F. Supp. 351 (D.Md.1972), summarily affirmed without opinion, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). The Chamber argues that it should have been allowed to intervene as of right under F.R.C.P. 24(a), or, alternatively, that the district court abused its discretion in denying it permissive intervention under F.R.C.P. 24(b). We find no merit in the contentions set forth by the Chamber and dismiss the appeal.

The original action was brought by the plaintiffs against state officials to have the state officials enjoined from enforcing a state regulation that prevented plaintiffs from receiving AFDC-E benefits. They alleged that e Maryland procedure violated an HEW regulation, 45 CFR § 233.100(a), and that it denied them equal protection under the Fourteenth Amendment. The district court rejected the equal protection argument. 340 F.Supp. 351, 363-364. The court held, however, that the Maryland procedure did violate the HEW regulations and, therefore, plaintiffs were entitled to AFDC-E benefits. 340 F.Supp. 351, 364-371.

The Chamber sought to participate in the above litigation as an intervenor or, alternatively, as amicus curiae. The Chamber sought to advance the argument that the Maryland procedure was valid because, by reason of the Supremacy Clause of the Constitution and the national labor policy, a state was obligated to deny AFDC-E benefits to strikers in order not to violate an employer’s right to bargain collectively, free from state interference. The district court allowed the Chamber to file an amicus brief and to take part in oral argument, but it denied the Chamber’s petition for permissive intervention under F.R.C.P. 24(b).

We are of opinion that this court has jurisdiction to hear this appeal. 28 U.S.C. § 1253 allows a direct appeal to the United States Supreme Court only in cases where a properly convened three-judge district court has either granted or denied an injunction. Since the instant appeal is from a denial of a petition for intervention and not from the denial of an injunction, we believe this is the proper forum in which to contest the decision. See Mr. Justice Douglas’ dissent in Oregon State Elks Ass’n. v. Falkenstein, 409 U.S. 1032, 93 S.Ct. 530, 34 L.Ed.2d 484 (1972); Cf. Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970).

The Chamber’s first contention is that the district court should have allowed it to intervene' as a matter of right under F.R.C.P. 24(a). However, it did not petition for leave to intervene under Rule 24(a) and never brought this matter to the attention of the district court. Under these circumstances, it may not now assert this contention for the first time in this court. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir. 1970). Therefore, we reject this contention.

The Chamber’s next argument is that since it met all the requirements of Rule 24(a), it was an abuse of discretion by the district court not to allow it to permissively intervene under Rule 24(b). We believe this position to be without merit.

While we acknowledge the rule that a denial of permissive intervention may be reversed only for an abuse of discretion by the district court, we do not believe such abuse existed in this case. Assuming, without deciding, that the Chamber established independent jurisdictional grounds to support its defense and alleged a sufficient interest in the transaction which was the subject of the litigation in the district court, we do not believe that it is so situated that the disposition of the matter will, as a practical matter, impair or impede its ability to protect its interest.

The Chamber admits that if the decision of the district court is sustained, it will not be precluded from later pressing its interests in another suit. It contends that even though it is not bound by the decision it will be disadvantaged in any further suit which it might bring because the district court’s ruling would influence the court in which the new suit would be brought. The Chamber also says that a new action will be difficult to initiate because the mootness doctrine enunciated by the Third Circuit in Super Tire Engineering Co. v. McCorkle, 469 F.2d 911 (3rd Cir. 1972), would require an in-progress strike of sufficient duration to permit the completion of a trial and an appeal.

The answer to the above contentions is that the district court’s ruling on the Chamber’s amicus argument was, at most, mere dicta and not binding on anyone. The district court did not rule on the merits of the Chamber’s contention ; its only holding was that the Chamber would not be permitted to intervene. In view of the fact that the district court’s discussion of the Chamber’s position was dicta we fail to see how it might be impaired or impeded in asserting its position in some future litigation. Cf. Credits Commutation Co. v. United States, 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782 (1900). Concerning the mootness issue, we express no view at this time as to the correctness of the decision in Super Tire Engineering Co., supra. Thus, the Chamber must only meet the requirement of Article III of the Constitution and present a case or controversy to the court in any future litigation. Since this is a burden that rests upon every party involved in litigation in a federal court, we do not feel it too heavy. Accordingly, we believe that the Chamber failed to meet the practical impairment requirement of Rule 24(a). Its contention that the district court abused its discretion by denying permissive intervention because it met the requirements of Rule 24(a) must fail.

The Chamber’s final argument is that, even if it did not meet the requirements of Rule 24(a), the district court abused its discretion by rejecting the Chamber’s position and then denying it party status. It apparently argues that the district court ruled on the merits of its position. As we said above, the district court held only that the Chamber’s position did not warrant permissive intervention. Cf. Credits Commutation Co., supra. Anything said there with regard to the Chamber’s substantive position was dicta. The Chamber has failed to demonstrate how its interest has been prejudiced or how the district court abused its discretion.

We are of opinion the statement by the Supreme Court in Sutphen Estates v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19 (1941), should apply here:

“Permissive intervention is governed by Rule 24(b). But we have said enough to show that the claim of injury to appellant is too speculative and too contingent on unknown factors to conclude that there was an abuse of discretion in denying leave to intervene. The court had ample reason to prevent the administration of the decree from being burdened with a collateral issue that on this record can properly be adjudicated elsewhere.” 342 U.S. 19, 23, 72 S.Ct. 14,17.

On the whole case, we are of opinion that the decision of the district court was not an abuse of its discretion under Rule 24(b). Accordingly, we dismiss the appeal.

Appeal dismissed.

      . AFDC-E is a program providing aid for children in a family in which the father is unemployed. See 42 U.S.G. § 607. The program is administered by the States under regulations promulgated by the Department of Health, Education and Welfare (HEW). See 45 CFR. § 233, et seq., especially 45 CFR § 233.100(a) (1). In the instant case, Francis was denied AFDC-E benefits under Rule 200 X.A. of the Social Services Administration, Department of Employment and Social Services, of the State of Maryland, because he did not qualify for unemployment insurance under Maryland law. He did not qualify for unemployment insurance because he was on strike. See Md. Ann. Code 95A, § 6(e), (1969 Repl. Yol.). Being qualified for unemployment insurance was a prerequisite to receiving AFDC-E benefits under Maryland Rule 200 X.A. For a more complete explanation of the background, see Francis v. Davidson, supra.

      . Francis v. Davidson, supra. 340 F.Supp. 355 fn. 7.

      . Rule 24. Intervention.
      “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

      . Rule 24(b):
      “(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order, administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
      See Wolpe v. Poretsky, 79 U.S.App.D.C., 144 F.2d 505, esp. 508 (1944).

      . See Railroad Trainmen v. B&O Railroad, 331 U.S. 519, 524, 67 S.Ct. 1387, 91 L. Ed. 1646 (1947) ; Allen Co. v. Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 88 L.Ed. 1188 (1944) ; State of North Carolina v. Southern Ry. Co., 30 F.2d 204 (4th Cir. 1929), cert. den. 279 U.S. 858, 49 S.Ct. 352, 73 L.Ed. 999 (1929) ; Martin v. Kalvar Corporation, 411 F.2d 552 (5th Cir. 1969) ; 7A Wright & Miller, Federal Practice and Procedure, § 1923, pp. 630-632. But, see Radford Iron Co. v. Appalachian Electric Power Co., 62 F.2d 940 (4th Cir. 1933), cert. den. 289 U.S. 748, 53 S.Ct. 691, 77 L.Ed. 1494 (1933).

      . When a party seeks permissive intervention, as here, lie must generally establish independent jurisdictional grounds to support his claim or defense. Babcock & Wilcox Company v. Parsons Corporation, 430 F.2d 531 (8th Cir. 1970) and cases cited therein; see Beard-Laney, Inc. v. Pressley, 18 F.R.D. 162 (W.D.S.C.1955). 7A Wright & Miller, Federal Practice and Procedure, § 1917. There are exceptions to this general rule, but it is doubtful that the Chamber comes within them. See Wright & Miller, supra, for an explanation of the exceptions to the rule.

      . We question whether the Chamber sufficiently alleged a significantly protectable interest in the litigation in this case so as to come within the interest requirement of Rule 24(a). See Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). We also question the Chamber’s standing to intervene as a party under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), since it failed to allege or show that any of its members were engaged in a strike with their employees and that some of these employees were eligible for AFDC-E benefits. However, since we believe that the Chamber fails to meet the practical impairment requirement of Rule 24(a), we do not reach the merits of the above issues.

      . This is a requirement of Rule 24(a). Prior to the 1966 amendment of Rule 24, the rule was that a party could not intervene under 24 (a) unless it might be bound by the judgment in the pending action. The term bound was interpreted to mean bound in the res judicata sense. The Rule now requires only that the “disposition of the action may as a practical matter impair or impede his (the applicant’s) ability to protect that interest.” This was designed to liberalize the right to intervene in federal actions. Thus, in a proper case, stare decisis by itself may furnish the practical disadvantage . required under 24(a). See Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 701 (1967) ; 7A Wright & Miller, Federal Practice and Procedure, § 1908. However, we do not think that the present controversy is such a case. We especially note that there is no class of defendants of which the Chamber is a member.

      . “The permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case.” Railroad Trainmen v. B&O Railroad, 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646 (1947).

      . See 7A Wright & Miller, Federal Practice and Procedure, § 1923, pp. 626-630.

      . See North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).


author: BECHTLE, District Judge.

text:
    UNITED STATES of America v. George COBBS, Appellant, and Charles Julius Thomas.
    No. 72-2023.
    United States Court of Appeals, Third Circuit.
    Argued April 2, 1973.
    Decided June 28, 1973.
    Certiorari Denied Oct. 23, 1973.
    See 94 S.Ct. 298.

      Martin W. Sheerer, McGregor, Dill-man, Sheerer & Schuchert, Pittsburgh, Pa., for appellant.
    Samuel J. Orr, III, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
    Before ROSENN and HUNTER, Circuit Judges, and BECHTLE, District Judge.
   OPINION OF THE COURT

BECHTLE, District Judge.

Appellant, George Cobbs, was charged in a two-count indictment with bank robbery and putting lives in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) and 2113(d). The indictment was returned against appellant on March 10, 1972. He was tried and found guilty by a jury on June 26, 1972. This appeal has followed from that conviction. The facts are essentially as follows:

On March 6, 1972, two men robbed the Forest Hills office of the Regent Savings and Loan Association and $1,323 was taken. The victims of the robbery, Mrs. Trude Smith and Mrs. Margaret Morgan, both employees of the bank, were the only eyewitnesses. The two employees testified at trial that one robber entered the bank, conversed with one of them for a short time, then declared that it was a “stiekup.” The second robber entered the bank carrying a handgun, whereafter the robbery was consummated. During the course of the robbery, the bank’s suryeillanee camera became activated, taking pictures of the unmasked men. These pictures were admitted into evidence.

Appellant Cobbs was arrested at his residence in Braddock, Pennsylvania, on March 27, 1972, for the above-described robbery. The arrest was based on the positive identification of Cobbs by Mrs. Morgan, an employee of the bank at the time of the robbery. The identification of Cobbs as a suspect in the robbery consisted of Mrs. Morgan’s selection of appellant's picture from a certain number of criminal identification photographs shown to her by Special Agent McCarthy of the Federal Bureau of Investigation (FBI). At the time of his arrest, Cobbs was informed of his constitutional rights and signed a waiver of rights form. During the automobile ride from Braddock to the Federal Building in Pittsburgh and after the waiver form had been signed, implicating statements were made by the appellant. Agent McCarthy testified that on the way to Pittsburgh appellant asked how much money had been stolen in the robbery. After being informed by the Agent as to what was stolen, the appellant responded, “You mean he got that, too” and later at the FBI office when told how much was taken the appellant stated, “I only got $150 or $175 out of that.”

Further incriminating statements, tantamount to an oral confession, were made by Cobbs when Agent McCarthy visited him in the Allegheny County Jail on March 29, 1972, two days after the arrest.

Appellant’s initial contention on appeal is that the photographic lineup was not shown to the Government witness, Mrs. Morgan, until after the indictment had been returned against him and, as such, so infected her testimony that her subsequent in-court identification should not be permitted. The exact time of the photographic lineup is somewhat in dispute. The Government contends that the photographs were shown to the witness on March 8, 1972, two days after the robbery and two days before the return of the indictment on March 10, 1972, as testified to by the FBI Agent who showed the photographs to the witness. Appellant relies on the testimony of Mrs. Morgan to support his argument that the lineup occurred after the indictment had been returned. Mrs. Morgan testified that she could not say exactly when she had been shown the photographs, but it was “about a week after the robbery.” Although there is a conflict in the evidence, the exact time of the lineup is inconsequential. That the photos were shown after the indictment had been returned does not per se render the witness’ identification testimony inadmissible. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967); United States ex rel. Reed v. Anderson, 461 F.2d 739 (3rd Cir. 1972).

Unless evidence of identification is of an independent origin, it will not be received if the circumstances of a pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentifieation at the trial. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1968).

As recited in detail by the trial judge’s opinion, there is no evidence on the record in this case that the pretrial identification procedures were so inherently unfair or impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Absent such a showing, evidence of even post-indictment photographic identification will not render in-court identification inadmissible.

Appellant further contends that the custodial interrogation conducted by Agent McCarthy of the FBI, which occurred after counsel had been appointed but without notice to or permission of counsel, violated appellant’s right to counsel as guaranteed by the Sixth Amendment and that incriminating statements made by the appellant in the course of the interrogation should be declared inadmissible.

On March 29, 1972, two days after appellant’s arrest, Agent McCarthy visited him in the Allegheny County Jail. The Agent read the Miranda warnings and took a written waiver from the appellant. The appellant then proceeded to state orally that he and another man had in fact committed the robbery in question and described to the FBI Agent the details surrounding the event. The trial court determined that the oral confession had been intelligently and voluntarily made and permitted the same testimony to be repeated in the presence of the jury. We agree with the decision of the lower court.

The fact that a defendant has an attorney does not mean that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, if not the consent of, the attorney. United States v. Springer, 460 F.2d 1344 (7th Cir. 1972). The court in Springer, supra, held that a constitutional right such as the right to counsel may be waived, although there is a higher standard imposed to show waiver of the presence of counsel once counsel has been appointed than before.

In Coughlan v. United States, 391 F. 2d 371 (9th Cir. 1968), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139, oral statements were testified to in court by police officers who interviewed the defendant in a jail interview room. The officers knew that the defendant was represented by counsel, but counsel knew nothing about the interview. As is true here, the defendant in Coughlan, supra, was fully warned, before he made any statements, of his Miranda rights; but he waived those rights. The court held that the statements made by the defendant were admissible into evidence, although it further indicated disapproval of the practice of interviewing prisoners in the absence of their attorneys.

The appellant, Cobbs, was fully cognizant of his rights at the time he made the incriminating statements. He freely and intelligently waived his constitutional rights by signing the written waiver and by making the oral statements to Agent McCarthy implicating himself in the robbery. If the officers' custodial interrogation was legally permissible, appellant’s right to counsel was not violated. The District Court’s holding that it is permissible for a law enforcement official to interview a defendant, even though the defendant has counsel and even though that counsel is not consulted as long as the proper Miranda warnings are given, as applied to the case before us, is the correct holding.

Although the practice of custodial interrogation in the absence of and without the permission of retained or appointed counsel is technically permissible, the practice is not commendable. The relationship between lawyer and client risks significant erosion and the ability of counsel to effectively represent his client is seriously jeopardized when this kind of interrogation ensues. These risks would be materially reduced if in such situations the District Court, in inquiring into the voluntariness of such statements would expert the prosecution to demonstrate that the waiver of the presence of counsel was knowing and intelligent. Also, in cases where this issue is important, the Government’s evidence in support of the voluntariness of the waiver should also include evidence to the effect that the accused, prior to making a statement, specifically acknowledged that he was aware that he was represented by an attorney. While we emphasize that we do not consider such evidence as mandatory, we do believe that the consideration of such evidence by the District Court is a stronger and, therefore, a more preferable basis upon which to conclude that the evidence in question, should be received. Other Federal appellate courts have encountered the same problem with the same feeling. See, United States v. Smith, 7th Cir., 379 F.2d 628, 633, cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L. Ed.2d 486. In addition to the basic legal and ethical problems appearing in these cases, the economical paradox that is evident when one arm of Government pays money from its treasury to afford counsel to an accused (as in this case where court-appointed counsel is used), while another arm of Government uses money from its treasury in an effort to keep the accused and his lawyer apart, justifies without more the need for a greater showing by the Government of the usefulness of such evidence.

The incriminating statements made by the appellant in the case before us are admissible for, viewed in the light of the current authorities, the accused deliberately and voluntarily chose to speak with the FBI Agent and implicate himself in the robbery.

Agent McCarthy also testified that appellant made certain oral statements implicating himself in the crime under investigation while riding in the automobile from the place of arrest to the Federal Building in Pittsburgh. Appellant now contends that these statements should have been suppressed, alleging in substance that the statements were involuntarily and unlawfully coerced from him. This contention is unfounded. Although Agent McCarthy testified before the jury that he initiated interrogation of the appellant regarding the crime in the automobile after the “Advice of Rights” and “Waiver of Rights” form had been signed by Cobbs (and which appellant admitted signing), the incriminating statements were made by the appellant completely of his own volition. The statements were not prompted by any investigatory questioning on the part of Agent McCarthy. The appellant initiated the conversation by asking how much money had been stolen. Agent McCarthy answered the question and Cobbs’ unsolicited and freely offered response to the Agent’s answer was “You mean he got that, too” and later, “I only got $150 or $175.” There is no reason why these two statements should be suppressed.

Appellant contends that the testimony given in regard to Count II of the indictment does not support the burden of proof which the prosecution must carry to prove the charge. The issue presented is the sufficiency of evidence necessary to establish a violation of § 2113(d). The trial court, relying on United States v. Roach, 321 F.2d 1 (3rd Cir. 1963), defined the burden of proof as “simply a question of whether the lives of the victims are put in danger because jeopardy means danger.” A jury may find that the jeopardy exists from the use of a deadly weapon during a robbery, even if there was no discharge of the weapon or the placing of it against the body. A finding in the instant case that the lives of Trude Smith and Margaret Morgan were put in jeopardy by the use of a dangerous weapon is certainly reasonable in view of the evidence presented. There was ample testimony received at trial demonstrating that the gun was used in seriousness and as an essential element of the robbery scheme. Both witnesses testified that the gun was exposed throughout the robbery, with the gunman brandishing the weapon in order to obtain compliance with his unlawful and fear-provoking dictates.

Sufficient evidence was presented to establish that the gunman placed the lives of the victims in jeopardy with the weapon, in violation of 18 U.S.C. § 2113(d).

The trial court’s charge to the jury was proper and in accordance with the law.

The judgment of the United States District Court for the Western District of Pennsylvania will be affirmed.

      . Two men have been indicted for the robbery, one of whom has not yet been apprehended.

      . In accord are Ceplius v. United States, 122 U.S.App.D.C. 187, 352 F.2d 663 (1965) ; Reinke v. United States, 405 F.2d 228 (9th. Cir. 1968) ; United States v. Dowells, 415 F.2d 801 (9th Cir. 1969). In Reinke, incriminating statements made by accused to the FBI were admissible though the Agent knew that counsel had been appointed for accused and failed to get authorization of counsel before proceeding with the interview, where accused initiated the conversation; appropriate Miranda warnings were given and accused fully understood his Miranda rights. It is not clear on this record that the Agent knew at the time he took the waiver and the oral statement that counsel had. in fact, been appointed.

      . See, United States v. Wedra, 343 F. Supp. 1183, 1188 (D.C., 1972) and Coughlan v. United States, supra, indicating disapproval of the practice.


author: FEINBERG, Circuit Judge:

text:
    Jean T. TERKILDSEN, formerly doing business under the firm name and style of Singer and Carlberg, Plaintiff-Appellant-Appellee, v. Eric H. WATERS et al., Defendants-Appellees-Appellants.
    Nos. 842, 958, Dockets 73-1050, 73-1149.
    United States Court of Appeals, Second Circuit.
    Argued May 29, 1973.
    Decided June 27, 1973.

      Peter W. Quinn, New York City (Martin J. Cunningham, New York City, on the brief), for plaintiff-appellant-appellee.
    H. William Rosenblum, New York City, for defendants-appellees-appellants.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   FEINBERG, Circuit Judge:

This bitter litigation is an object lesson on the virtues of the individual calendar system and the burden imposed by diversity jurisdiction on the increasingly overcrowded dockets of the federal district courts. The dispute grows out of a contract between competitors, both then based in New York City, in which plaintiff Jean T. Terkildsen sold her business to defendants, co-partners doing business under the name of Haseltine, Lake and Co. The complaint was filed in October 1968, and the five and one-half pages of docket entries in the United States District Court for the Southern District of New York show that no less than ten judges of that court were required to deal with aspects of the case before it was eventually tried almost four years later before Dudley B. Bonsai, J., sitting without a jury. After three days of trial and the receipt of additional letters and papers, Judge Bonsai found for plaintiff on one of her three causes of action in the amount of $18,663.60 with pre-judgment interest at six per cent, and for defendants on one of their two counterclaims in the amount of $22,573.43 with six per cent interest from the date of judgment. True to form, both parties appeal and make arguments that, in large part, were never raised below. We affirm the judgment of the district court.

I

Prior to March 8, 1968, plaintiff Terkildsen owned and operated Singer and Carlberg, an international agency engaged in the business of registering trademarks and patents in foreign countries on behalf of American clients, principally attorneys. On that date, plaintiff entered a contract with defendants in which she agreed to sell her business. The purchase price consisted of (1) a $22,500 down payment allocated to various assets being transferred; and (2) five per cent of gross billings, payable in monthly installments, collected by Haseltine, Lake from plaintiff’s former clients from March 1, 1968 to March 1, 1973. The installment sum due under the gross-billings provision was to be determined on the basis of semi-annual accountings furnished to plaintiff by defendants. While defendants paid the first component of the purchase price immediately, it is undisputed that they owed plaintiff $18,663.60 under the second. Accordingly, Judge Bonsai entered judgment in plaintiff’s favor for this principal sum; at least from this aspect of the judgment, no appeal is taken.

Under a separate provision of the contract of sale, plaintiff-seller covenanted

to reimburse Purchaser to the extent of moneys paid to Seller by her clients for services to be rendered to the extent that such services were not rendered. Purchaser reserves the right to offset any such prepaid fees against the periodic payments herein-above referred to, to be made on account of 5% of gross billings collected by the Purchaser.' .

Defendants’ counterclaim is based on this contractual clause and upon a letter, mailed to plaintiff’s former clients shortly after execution of the contract over the signatures of both firms (the joint letter), which stated in part that

the predecessor firm remains responsible for all past commitments, financial and otherwise, assumed and incurred prior to March 1, 1968, and the successor firm accepts responsibility for all future commitments made from and after March 1,1968.

In a memorandum opinion, Judge Bonsai found that plaintiff was liable to defendants in the sum of $22,573.43 under the terms of the undertakings set forth above. Plaintiff appeals from that determination.

Plaintiff argues that there “is absolutely no evidence that the defendants ever paid a penny of the $22,573.43 for which they were awarded judgment. . ” However, defendants adequately established certain critical facts. First, when Haseltine, Lake acquired plaintiff’s business, they acquired client accounts in which work on pending matters remained uncompleted. Second, client pre-payment of fees for future work to be performed was customary in the profession, and plaintiff conceded that she had been paid for work not yet completed. Third, in accord with the joint letter, defendants were thereafter billed in the sum of $22,573.43 by “correspondents” or “associates” situated abroad for services performed by them to facilitate the filing of patent or trademark applications in foreign countries. Finally, payment to foreign associates for services rendered is a significant aspect of work performed by an international agency; in monetary terms, from 50 to 75 per cent of fees received from clients are generally paid over to foreign associates.

If the reimbursement clause of the contract means what it seems to say, this proof was sufficient to permit recovery under the counterclaim. Plaintiff was pre-paid to do work which she did not do, and the extent of work undone is reasonably measured by the sums claimed by foreign associates, as reflected in the bills or debit notes they submitted to defendants as contemplated by the joint letter. Plaintiff contends, however, that defendants cannot recover absent proof that bills presented by the foreign associates for work performed for plaintiff’s clientele were in fact paid by Haseltine, Lake; plaintiff argues that no shred of documentary proof of defendants’ disbursements — e. g., can-celled checks, receipts — was ever introduced into evidence. We believe that though the testimony as to payments was not crystal clear, it was sufficient to permit the district judge to find as he did. Defendant Waters, the principal co-partner in Haseltine, Lake, adequately explained the absence of cash disbursements to the foreign associates and correspondents. These individuals were paid instead through internal bookkeeping procedures of Haseltine, Lake. Accounts receivable due from these associates and correspondents were cancelled against accounts payable to them, representing bills for services rendered on behalf of plaintiff’s clients. In short, under a reasonable view of the evidence, and regardless of the scope of our own review, cf. Meyers v. Selznick Co., 373 F.2d 218, 222 & n. 2 (2d Cir. 1968), we see no basis for setting aside the district court’s decision on the counterclaim.

II

The remaining questions on appeal concern the award to plaintiff of prejudgment interest on her claim. Defendants assert in a cross-appeal that pre-judgment interest is inappropriate on the facts of this ease; plaintiff contends that the six per cent rate for that interest is too low. In support of their position, defendants rely on their contractually reserved “right to offset” sums owed by plaintiff under the reimbursement clause against periodic installments payable over five years to plaintiff under the 5%-of-gross-billings component of the purchase price. If defendants’ computations are correct, then throughout the contractual term, by operation of this right to offset, plaintiff always owed defendants more than they owed her. If so, defendants argue that plaintiff has never been deprived of the use of any funds owed and should not recover interest to compensate for such deprivation. See Candiano v. Moore-McCormack Lines, Inc., 407 F.2d 385, 387 (2d Cir. 1969).

Putting to one side the question whether defendants’ “right to offset” did not require some affirmative action on their part in view of the common law principle that mutual debts, even when arising out of the same transaction, do not cancel each other, we need not and should not consider defendants’ argument. Defendants did not raise in the district court the propriety of pre-judgment interest for plaintiff, even though her complaint included a specific prayer for such interest and though her proposed findings of fact and conclusions of law requested “interest as it may appear.” It is true that defendants’ proposed findings took the position that a net judgment should be entered in their favor because plaintiff owed them more than they owed her, but the issue of pre-judgment interest for plaintiff was nowhere mentioned. Far more significantly, following the judge’s opinion directing that pre-judgment interest be included in plaintiff’s recovery, counsel for defendants sent Judge Bonsai a letter accompanying a proposed judgment, in which a method for computation of plaintiff’s pre-judgment interest at six per cent was detailed. At no point in this letter, nor at anytime thereafter, did defendants challenge the award to plaintiff of pre-judgment interest on the ground that they had exercised their right to offset, though they might have done so even after judgment was entered by a motion under Fed.R.Civ.P. 59(e). Cf. Gilroy v. Erie-Lackawanna R.R., 44 F.R.D. 3 (S.D.N.Y.1968).

Under these circumstances, we see no reason to depart from the general rule of practice which forecloses appellate consideration of issues not raised below. See, e. g., Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). Adherence to the rule is particularly apt where, as here, factual questions may have been implicated as to which the judge made no findings because the issue was not directly raised and equally, where considerations underlying a subtle legal issue could have been exposed and distilled by the able district judge so as to facilitate more informed consideration by this court. We have previously suggested that the general rule is fully applicable to questions of pre-judgment interest, see Julien J. Studley, Inc. v. Gulf Oil Corp., 407 F.2d 521, 529 n.8 (2d Cir. 1969), and this seems the view held in other circuits. See Bank of America National Trust and Savings Association v. Rocco, 226 F.2d 297, 302-303 (3d Cir. 1955) (en banc), rev’d on other grounds sub nom. Bank of America National Trust and Savings Association v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956); Eastern Commercial Travelers Accident Ass’n v. Sanders, 108 F.2d 643, 646 (1st Cir. 1940); Smith v. Boise City, 104 F. 2d 933, 936-937 (9th Cir. 1939); cf. Arkla Exploration Co. v. Boren, 411 F. 2d 879, 883-884 (8th Cir. 1969). Accordingly, we decline to consider an issue so belatedly raised.

We come, finally, to plaintiff’s contention that she is entitled to prejudgment interest at a rate greater than six per cent. Briefly put, plaintiff’s argument is that she should get the benefit of the higher legal rate of interest in effect when installments owed her became due. This issue is a troublesome one because it is not clear whether the amendment of NYCPLR § 5004, effective September 1, 1972, providing that interest shall be at the rate of six per cent per annum except where otherwise provided by statute, applies (with regard to pre-judgment interest) retroactively to affect all claims not yet reduced to judgment or applies only to claims accruing thereafter. However, plaintiff failed to call the issue to the attention of the district court. In what may be an effort to sidestep this impediment, she argues that the judgment entered in her favor is defective for want of specificity. This is obviously not so, because the judgment states clearly that the pre-judgment interest due plaintiff on her recovery of $18,663.60 is $3,379.-58. In any event, we rest our refusal to consider plaintiff’s argument on another ground. Plaintiff’s notice of appeal stated only that she

appeals . . . from that portion of the final judgment wherein the District Court entered a judgment on [defendants’] first counterclaim . . . for $22,573.43. . . .

We have often enough manifested our willingness to construe notices of appeal liberally, e. g., Bancroft Navigation Co. v. Chadade S.S. Co., 349 F.2d 527 (2d Cir. 1965). We have expressed our view that the federal appellate rule requiring designation of “the judgment, order or part thereof appealed from” is a “means of identification and not a step in appellate pleading [, f]or assignments of error and other paraphernalia of ancient appellate pleading are done away with.” Val Marine Corp. v. Costas, 256 F.2d 911, 916 (2d Cir. 1958). In the same vein, Professors Moore and Ward have observed that

failure to designate a particular part [of a judgment] is not fatal if the intent to appeal from that part can fairly be inferred from the parts actually designated . . . . '

On the other hand,

if the parts [of the judgment] are truly independent, the more likely inference from the designation of particular parts in the notice of appeal'is that appellant does not desire review of parts not designated.

9 Moore’s Federal Practice ¶ 203.18, at 756.

We think that plaintiff’s notice of appeal, designating only defendants’ recovery on the counterclaim as the part of the judgment appealed from, clearly falls within the second category, and manifests an intent to leave the judgment on her own claim undisturbed. It seems that only after defendants took a cross-appeal challenging the award of interest on plaintiff’s claim did plaintiff, as an afterthought, seek to enlarge her recoverable interest. As appellee with respect to the cross-appeal, she may not do so. See United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924). We cannot fail to notice that this leaves plaintiff and defendants with judgments of almost the same amount, see note 11 supra, after years of contentious maneuvering; this does not seem an inappropriate result.

Judgment affirmed.

      . See H. Friendly, Federal Jurisdiction: A General View, Pt. VII (1973).

      . Happily, under the rules now in effect in the Southern District, such waste of judicial resources should no longer occur. See Southern Dist. Calendar Rule 1.

      . Plaintiff’s other causes of action sought damages for slander and for malicious interference with employment contracts with her employees; Judge Bonsai dismissed these actions as altogether without evidentiary support. For the same reason, the judge also dismissed defendants’ second counterclaim, which sought to enjoin plaintiff from breach of a contract not to compete.

      . As Waters explained it, Haseltine, Lake had accounts receivable from the same individuals because “many” of the foreign associates were also paying clients of the firm with respect to filings executed by it in the United States Patent Office.

      . See 6 S. Williston, Contracts § 887E.

      . Defendants have followed, both in the district court and in this court, a similar pattern of ignoring the question of prejudgment interest, if any, due on their counterclaim. ■ Although defendants did request such interest in their answer, no findings of fact were ever requested as to when their claims for reimbursement had accrued, nor did defendants object, after the judge had rendered decision, to the absence of pre-judgment interest on that portion of the judgment in their favor. Finally, even now defendants do not argue to us that such interest was erroneously omitted. In light of all this, we consider the question no further.

      . E. g., assuming that afirmative action by defendants was necessary, see text at note 5 supra, to enforce their “right to offset,” did they take affirmative action? When was such action taken? Was it sufficient?

      . Unlike National Fire Insurance Co. v. Sequoyah County, 115 F.2d 232, 233 (10th Cir. 1940) — cited in 5A Moore’s Federal Practice ¶46.02, at 1906 n. 9, for the proposition that interest allowed on a claim contrary to state law is a “fundamental error” which may be corrected on appeal though not raised below —there is no state statute here unambiguously foreclosing pre-judgment interest on the claim.
      Nor, with but one exception, have we found any case in this circuit where interest issues were considered on appeal without having been raised below. The exception is United States v. L. N. White & Co., 359 F.2d 703, 714 (2d Cir. 1966), where, in the concluding paragraph of the opinion, the court devoted one sentence to affirming the district court’s exercise of discretion in awarding pre-judgment interest, after pointedly complaining of failure to raise the point prior to appeal.

      . The rate determined by the State Banking Board under N.Y.Gen.Obl.Law § 5-501 was 7%% from July 1, 1968 to February 16, 1969 and 7%% thereafter. Prior to July 1, 1968, the rate had been 6%.

      . The memoranda of the Law Revision Commission indicate that the fixing of the rate of 6% would permit the administrative act of entering judgments with interest “to be accomplished efficiently and routinely without possible controversy over different rates for different periods,” 1972 New York State Legislative Annual, “Memoranda of Law Revision Comm’n,” at 89, which arguably would point to retroactive effect. But see Yamamoto v. Costello, 342 N.Y.S.2d 33, 37-38 (Sup.Ct.Nass. Co.1973) ; 5 Weinstein, Korn & Miller, New York Civil Practice ¶ 5004.01 (1972).

      . This brought plaintiff’s judgment to $22,043.18, almost equivalent to the $22,-573.43 judgment recovered by defendants.

      . The language now appears in Rule 3(c) of the Federal Rules of Appellate Procedure.


author: LEVIN H. CAMPBELL, Circuit Judge. COFFIN, Chief Judge

text:
    UNITED STATES of America, Appellee, v. ONE REEL OF FILM. GERARD DAMIANO PRODUCTIONS, INC., Claimant-Appellant.
    No. 73-1181.
    United States Court of Appeals, First Circuit.
    Heard June 7, 1973.
    Decided July 16, 1973.

      John J. Crowley, Jr., Boston, Mass., for appellants.
    Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

The subject of this forfeiture proceeding brought under 19 U.S.C. § 1305(a) is a film entitled “Deep Throat.” Imported from Canada, the film and its container were seized at Logan Airport, Boston, by officers of the United States Customs Service. The United States Attorney for the District of Massachusetts then filed a complaint in the District Court, against which the owner defended. After a trial without jury, the court ordered that the reel of film and container be forfeited to the United States of America for destruction forthwith. An appeal was argued and briefed, and we viewed the film early in June, prior to the time that the Supreme Court rendered decisions in five obscenity and pornography cases, re-examining earlier standards. Miller v. California, - U.S. -, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton, - U.S. -, 93 S.Ct. 2628, 37 L.Ed.2d 446; United States v. Orito, - U.S. -, 93 S.Ct. 2674, 37 L.Ed.2d 513; Kaplan v. California, -U.S. -, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200-Ft. Reels of Super 8mm. Film, - U.S. -, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).. The questions presented is whether or not to affirm the judgment of the district court in light of the Supreme Court’s latest pronouncements.

The hearing in the district court was extensive, and the court’s findings detailed and sensitive to the requirements of the law as it then was. Assuming that the First Amendment forbids suppression unless the film “is found proscribably obscene,” see United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), the court found that the film was imported for commercial use only and limited its inquiry to intended commercial exhibition “to audiences of adults in a public theatre.” Pandering was not involved. To determine what was obscene and not protected under the First Amendment the court applied the Roth-Memoirs tests, as we recently restated them in United States v. Palladino, 475 F.2d 65, 69-70 (1st Cir. 1973),

. . . (1) do the materials, taken as a whole, appeal primarily to prurient interests of the average adult (or, if directed to deviants, to the prurient interest of the intended group, Mishkin v. New York, 383 U.S. 502 [86 S.Ct. 958, 16 L.Ed.2d 56] (1966))?;
(2) are the materials patently offensive because they affront contemporary community standards relating to sexual matters?;IJ and (3) are the materials utterly without redeeming social value? [footnotes omitted].

The court went on to make findings as to the content and nature of “Deep Throat.” It found that it contains scenes of explicit heterosexual intercourse, including group sex, and emphasizes. various scenes of explicit penetration, fellatio, cunnilingus, female masturbation, anal sodomy, and seminal ejaculation. It found that

[t]hey dominate the film in depiction and running time to such extent that, following the opening innocuous few minutes (probably not more than eight) until “The End” flashes on the screen, scenes of sexual acts cascade one upon the other with minor interruptions. All these are accompanied by musical sounds and some dialogue, and enlivened on two occasions with bells ringing, bombs and rockets bursting. Camera angles and close-ups give maximum emphasis in time and dimensions to the genitalia during the sexual exhibitions.

Our own viewing of the film revealed nothing different from the district court’s. The film’s plot depicts the adventures of Linda Lovelace, a girl who finds life dull because numerous sexual encounters do not result in her hearing “bells, bombs, dams bursting . something.” Portrayal of her cure, at the hands, literally, of a psychiatrist is occasionally interrupted to portray copulation with and by others. There is little, one might almost say nothing, else. We are thus left with a rarity: a film so single-minded as to fail even the older Roth-Memoirs test — unless one is tempted, as plainly a majority of the Supreme Court is not, to find redeeming social value in the explicit portrayal, without more, of sexual congress itself. Moreover, wisely though now perhaps unnecessarily, the Government presented expert witnesses whose testimony adequately, we find, supported its position and the court’s findings on the essential elements of the Roth-Memoirs test.

The district court concluded that the film, which it found to go “beyond any film which has been examined by the courts”, appeals in its dominant theme to prurient interest in sex; that it is patently offensive in that it affronts national contemporary community standards with respect to description and representation of sexual matters; and that it is utterly without redeeming social value.

Appellant’s attacks on these findings are not persuasive. We recognize a continuing duty of appellate courts in an area involving First Amendment guarantees to make what appellant terms “individual, case-by-case applications of the rules of law.” See Miller v. California, supra, - U.S. at —•, 93 S.Ct. at 2615; Kois v. Wisconsin, 408 U.S. 229, 231-232, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Roth v. United States, supra, 354 U.S. at 497-498, 77 S.Ct. 1304 (Mr. Justice Harlan, concurring and dissenting). The greater latitude now afforded to the proscribing of allegedly obscene materials makes that duty, if anything, greater. We have viewed the film and do not defer mechanistically to the findings below. But our independent viewing of the film as well as our reading of the entire record convinces us that they were correct. A fortiori the more relaxed standards announced recently by the Supreme Court were met.

We have considered whether the recent revision of standards, occurring since trial and appellate argument, requires remand or rehearing. We think not. One possible object, to consider whether the applicable federal statute is sufficiently definite and limited to meet present standards, was obviated by the Court’s decision in one of the five recent cases, United States v. 12 200-Ft. Reels of Super 8mm. Film, supra. The Court there reversed a summary decision of the district court holding that 19 U. S.C. § 1305(a), the relevant statute here, was unconstitutional on its face. In footnote 7, the Court went beyond the issues of that case, stating,

If and when such a ‘serious doubt’ is raised as to the vagueness of the woi:ds ‘obscene’, ‘lewd’, ‘lascivious’, ‘filthy’, ‘indecent’, or ‘immoral’ as used to describe regulated material in 19 U.S.C. § 1350(a) . . . we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard-core’ sexual conduct given as examples in Miller v. California, supra. . . . -U.S. at-, 93 S.Ct. at 2670.

The examples in Miller v. California were,-U.S. at-, 93 S.Ct. at 2615,

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

Both examples describe the conduct principally portrayed in “Deep Throat”; the dominant theme of the film is precisely the depiction of such conduct without recognizable forays into other areas which might be said to lend to the work as a whole “serious literary, artistic, political, or scientific value.” Id. We have no doubt “the average person, applying contemporary community standards” would find that the work taken as a whole, appeals to the “prurient interest”, whatever reasonable definition be applied to the latter, admittedly loaded words. If the film does not appeal to “purient interest,” it is difficult to know what possible other interest the film attempts to reach.

Perhaps the most substantial argument advanced by appellant is that the film, in the words of one expert, “. . . puts forth an idea of greater liberation with regard to human sexuality and to the expression of it.” Another expert, along the same line, believes that “many women have an unreasonable fear of the penis” and that both sexes can'benefit from watching the love-making techniques employed in the film. The difficulty is that the argument proves too much. We are told by the Supreme Court that obscene material is unprotected by the First Amendment, such material being described as confined to “works which depict or describe sexual conduct.” We can only read the recent cases as an express rejection of any argument that pornography itself, because of its liberating impact, has for that reason alone, serious literary, artistic, political, or scientific value. We would be misreading the message unmistakably transmitted by the Supreme Court were we to hold otherwise.

As the findings of the district court affirmatively embrace each of the standards established by the Court — although in certain respects they are addressed to meeting an even narrower standard— and as we have seen the film ourselves and independently find that it is obscene and unprotected, we see no possible reason to remand, especially as the Supreme Court has just addressed itself to the construction and adequacy of the federal statute involved. See United States v. 12 200-Ft. Reels of Super 8mm. Film, supra, -U.S. at-, 93 S.Ct. at 2615, n. 7.

Affirmed.

COFFIN, Chief Judge

(concurring).

I concur in the court’s opinion. I add these words only to underscore the fact that we continue to apply “national standards” in the judgment of this appeal, notwithstanding the reference to such by the Supreme Court in Miller v. California, - U.S. —, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), as involving an “exercise in futility” to define what is “hypothetical and unascertainable”. We do so because of the nature of the federal statute with which we deal and because we see no other alternative if we are to participate meaningfully in the review process. As to the former, if 19 U.S.C. § 1305(a), which permits customs seizures, be said to contemplate the application of state or local standards of prurient appeal or patent offensiveness, the few commercial ports of entry for foreign films or literature would be able to preclude such material from ever reaching other parts of this country where it might not be considered obscene or where regulation, rather than an outright prohibition, might be in effect. I cannot believe that Congress intended to grant that veto power, nor wished to condone the effect on foreign and interstate commerce which might ensue from attempts to circumvent such port of call censorship.

As to the latter, were we to remand for a ruling in accordance with Massachusetts-or-Boston standards, we as a reviewing panel would be two-thirds disabled in passing judgment on prurient appeal and patent offensiveness, for one of us is from Rhode Island and one from Maine. On the other hand, if our function is merely to see that the proper law was applied — or, where there was a jury, that the correct instructions were given — and once satisfied, to accept any ensuing finding, it could be said that such review was in name only, and certainly not the “independent review” by an appellate court which is needed to safeguard First Amendment values. Miller, supra, — U.S. at -, 93 S.Ct. at 2615.

      . Roth v. United States, 354 U.S. 476, 77 • S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ; Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975. 16 L.Ed.2d 1 (1966).

      . The court noted our comment in Palladino, 475 F.2d at 69, n. 2, that the referent for community standards “is the nation.” While it is now clear, see Miller v. California, supra, - U.S. -, 93 S.Ct. 2607, 36 L.Ed.2d 419 (1973), that a national community standard is not required in state prosecutions, the Supreme Court’s recent decisions leave unclear whether proceedings under federal statutes, “reaching ... to all parts of the United States whose population reflects many different ethnic and cultural backgrounds,” still require, as was suggested in Manual Enterprises v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (1962), reference to a “national standard of decency.” See Excellent Publications, Inc. v. United States, 309 F.2d 362, 365 (1st Cir. 1962). Since all parties assumed in the present case that the standard was national, and since we do not read the Supreme Court as requiring a local standard in proceedings under § 1305(a), we find no error in the district court’s assumption in this case. Moreover, we find no merit in appellant’s argument either that the Government’s witness, a sociologist who testified that "Deep Throat” affronted a national community standard, was unqualified, or that there was insufficient evidence from which to find that the film affronted contemporary community standards.

      . In Paris Adult Theatre I v. Slaton, supra, the Court said,-U.S. at-, 93 S.Ct. at 2634, “Nor was it error to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence.” It indicated that hard core pornography “ ‘can and does speak for itself’ ”, citing, among other cases, United States v. Wild, 422 F.2d 34, 35-36 (2nd Cir. 1969), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971). Expert assistance, the Court found, is not needed by jurors in obscenity cases, except possibly in ones relating to materials directed “at such a bizarre deviant group that the experience of the trier-of-fact would be plainly inadequate to judge whether the material appeals to the prurient interest.” Id. at -, 93 S.Ct. at 2634 n. 6. While expert testimony is not now generally required constitutionally, compare United States v. Palladino, supra, it remains permitted.

      . Unprotected material, besides being so confined, must be specifically defined by the applicable law “as written or authoritatively construed.” The 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.” Miller v. California, supra, 93 S.Ct. at 2615; see United States v. 12 200-Ft. Reels of Super 8mm. Film, supra, - U.S. at -, 93 S.Ct. at 2670 n. 7.