United States v. New Buffalo Amusement Corp., Aquarius Releasing, Inc., and Terry Levene

disаgree I not exist at all. But the offeror majority’s with the view that cluded did all Tiger have been free to state that obligations is excused from would not its under problems antitrust potential the law because fears of management Seaboard’s if its own documents revealed not choose unrealistic misleading did to combat about quite it was concerned in fact statements in the through tender offer lit merger. implications of the the antitrust erature its own. favorably Viewed most express case, T.iger chose to present In the Tiger, Seaboard’s to sue rather decision management’s position its view on Seaboard than conduct a through battle of words appropriate value of concerning merely media would be “some evidence” on shares; having decided to embark on the issue of materiality. General Time mate- path, obligation Tiger had an to avoid Corp. Talley Industries, Inc., v. misleading rially statements. 159, 162 (2d 1968), denied, Cir. cert. 393 U.S. (1969), S.Ct. 21 L.Ed.2d 570 majority agree I Finally, cannot quoted in Copper Corp. Kennecott v. Cur Motley her abused discretion tiss-Wright Corp., irreparable F.2d 1200 n.4 if the finding harm to Seaboard (2d 1978). Moreover, Cir. As preliminary injunction most that was not issued. repre- Seaboard could Judge Motley opinion, furnish in her to its stockholders noted stage at that by way “riposte” Peabody of a sentative Kidder & Co. testified was its own management’s be expert as an witness that there would liquida calculation of value, tion “very impact” the credibility serious on his firm’s efforts of which would be question open purchaser find another Seaboard because of its own interest (a at a opposing Knight”) stock so-called “White greater takeover. farOf materiality higher price Tiger’s than offer if the tender to Seaboard stockholdеrs would permitted be the offer to be consummat- knowledge itself, should that Tiger presented Tiger ed. no evidence to offering only share, per $13.50 had sup- contrary. amply record therefore appraised the stock as approximately worth ports findings below. per $20 share- on liquidation and considered this to be to its advantage making dis- For reasons I dissent from the these offer. Since Seaboard did learn this complaint missal and from the rever- of the crucial fact until after the lawsuit had been judgment sal below. I would affirm commenced, it hardly position, ain injunction. grant preliminary the majority suggests, to furnish the infor mation at an point earlier its stockhold

ers.

Nor would requiring greater care on the

part Tiger duty constitute “imposing

self-flagellation offerors,” as in Missouri Portland Cargill, Inc., Cement Co. America, Appellee, UNITED STATES F.2d denied, 1974), cert. (1974). 42 L.Ed.2d 123 CORP., NEW AMUSEMENT BUFFALO In Missouri target Portland company Inc., Terry Aquarius Releasing, urging that it misleading was false and Levene, Appellants. for the offeror to fail to include some men 444, Docket 78-1317. No. tion in its offer of possibility that an antitrust law violation would result from a Appeals, United States Court of

successful tender offer. We concluded that Second Circuit. it would have been reasonable under the Argued Dec. circumstances for the to conclude offeror May Decided that no problems antitrust Obvi existed.

ously in approach such a case it would “self-

flagellation” for the offeror raise in its

offer an reasonably issue which it con- had Dershowitz, Mass., Cambridge,

Alan M. Baker, (Ro- Cambridge, and Jeanne Mass. Fine, Mass., senberg, Cambridge, Baker & brief), appellants. Williams, Roger Atty., P. Asst. U. S. Buf- falo, Y., Arcara, Atty. N. Richard J. U. S. York, for the Western District of New Buf- falo, Y., appellee. N. for OAKES, Before and MANSFIELD Cir BARTELS, Judges, cuit District Judge.* BARTELS, Judge: District Appellant operates Levene owns and sev- corporations produce, distribute, eral which pictures. and exhibit motion Appellant Aquarius Releasing, (“Aquarius”), Inc. an corporation entertainment of which Levene presidеnt, acquired sole stockholder and produced allegedly obscene film involved here entitled “Belinda.” The oth- corporate appellant, er New Buffalo (“New Buffalo”), Corp. Amusement is a Theatres, subsidiary Inc., of Loew’s and is operator Buffalo, of the theater in New York, question which the movie shown.

Under the four-count indictment which action, 2,May initiated this filed on Levene, against appellants Aquarius, New Buffalo, other and various defendants not appeal,1 involved in this Levene and Aquar- * York, film, sitting by Of the Eastern District of New in violation of 18 § U.S.C. 1462. The designation. second count —under which New Buffalo Corp. charged Amusement convicted — defendants, 1. Other except defendants named in Aquari- the indictment all that us, Levene and Theatres, Inc., Corporation, “willfully, were knowingly Loews unlawfully Loews did Arena, Abrams, Benjamin Frank Franklin cause be taken from a common carrier” an film, Jr. The first count of the obscene indictment —on also violation of 18 U.S.C. appellants Aquarius charged conspiracy Levene and Releas- 1462. The third § count ing charged the, charged that all de- to commit the substantive crimes convicted — “knowingly, willfully two, fendants did and unlaw- counts one and and the fourth count fully transport commerce, by charged conspiracy in interstate to commit the substan- carriers, using means of common mailing from the State of tive crime of the mails for Jersey City Buffalo,” trailer, New to the an obscene obscene in violation of 18 U.S.C. not until knowingly using

ius wére convicted of October 1977 that a carriage finally empanelled, in interstate and even then the trial common carrier for film, postponed an obscene and New was until November commerce of knowingly taking approximately years Buffalo was convicted of four and one-half after carrier, Although the same film from the common the date of indictment. various govern- both offenses in violation of 18 contentions have made U.S.C. been 2.2 judgments explanation delay, 1462 and of convic- ment in of this extensive §§ July dispute tion were entered on 1978 after a we find no the actual facts jury trial in the United States District reflected the record or the docket sheet. Court for the Western District of New For clarity summarizing the sake table York, Curtin, appeal J. This is an periods is annexed hereto as an judgments. those appendix. Appellants many grounds have asserted Appellants specified alleged vio reversal, including the claim that speedy rights according lations of their trial rights speedy were denied their to a trial by (1) to the different periods time covered speedy under the plans various applicable Western District Plans Re Western District of New York3 and under garding Prompt Disposition of Criminal the Sixth Amendment. we reverse Since 1, 1976), (April July passed 1973 to Cases ground on the appellants’ denial of 50(b) pursuant to Rule of the Federal Rules rights trial, Sixth Amendment to a Procedure; (2) of Criminal the Western we need limit ourselves Prompt Disposition District’s New Plan for trial contentions. Cases, promulgated pursuant of Criminal 1974, Speedy Trial Act of 18 U.S.C. While we realize delay alone is 1,1976 1,1979); seq. (July July 3161 et §§ insufficient to constitute a Amend Sixth (3) speedy Amendment trial Sixth violation, ment chronological history of Accordingly, clause. the extent and effect delays prosecution action, in the of this presented of the involved can best be for which the appellants must assume some by lapse a discussion of the time under of the responsibility, reflects an official in each Plan. difference necessity to the speedy of a trial required by аpplicable Western Dis I. WESTERN DISTRICT’S RULE trict by Plans and the Constitution. Al 50(b) PLANS though the 2, indictment May was filed on appellants 1973 and moved for Appellants’ predicated dismissal on first contention speedy grounds 1,1976,4 trial on June it was a violation of Rule 4 of the Western Procedure, 2. Section April 1462 of Title 18 of the United States Criminal became effective on provides, pertinent part, 1, Code as follows: 1973. That Plan remained in effect until September superseded when it was knowingly any Whoever . . . uses ex- by Plan, adopted press the Western company carrier, District’s Interim or other common pursuant 50(b) conformity carriage “in to Rule foreign in interstate or commerce— (a) obscene, provisions Speedy any lewd, lascivious, filthy Trial Act of 1974.” or Plan, p. picture ; Interim 1. This Interim Plan was su- motion film . or 1, perseded July on 1976 the Western Dis- Plan, pursuant promulgated trict’s New knowingly Whoever takes from such ex- 1974, Speedy Trial Act of 18 U.S.C. 3161 et §§ press company any or other common carrier seq., and New Plan will this remain in effect thing carriage matter or of which is here- 1, July until in made unlawful— $5,000 Shall be fined not more than or imprisoned years, both, judge appellants’ not more than five or 4. The trial motion on denied 23, reconsideration, again, for the first such offense and shall be fined June 1976 and after $10,000 imprisoned 4, August not more than or on The latter was im- denial years, both, 14, more than mediately appealed, September for each such but on offense thereafter. —before briefs on the merits were filed— appeal ground this court dismissed the on the Regarding 3. The Western District’s Plan and, the trial final court’s order was not Prompt Disposition Cases, adopted of Criminal therefore, non-appealable. was pursuant 50(b) to Rule of the Federal Rules of 2, 1, May Plan, April and one-half months frоm 1973 to 50(b) effective District’s Rule 15, July hearing 1974 were consumed superseded this Plan was 1973. While pretrial motions. Un- the Western Dis- and consideration September Plan, 50(b) Plan, pur- 5(a) period, this for all der Rule dur- trict’s Interim Rule identical, plans ing judice, are were sub must be poses relevant here which motions pertinent provision July reads as fol- From 16 to and the November excluded.5 action, and, government lows: took no therefore, charged it must be with this be government In all cases the must delay. three and one-half month ready for trial within six months arrest, summons, the date of service of 1, 1974, the On November detention, filing complaint or or the of a Attorney sent a notice to defense States charge upon of a formal which de- placing the matter on counsel and the court fendant is to be tried. to set a date for trial. If' the trial calendar therefore, necessary inquiry, whether properly could be treated as this motion government ready within for trial readiness, government should notice of indictment, six months after date of exclu- given the benefit of the November any periods delay. sive of of excludable However, not in procedure date. Appellants government claim that accepted with the Western Dis accordance required signify its for trial readiness written notice of practice filing trict filing timely writing notice of readiness in Pierro, readiness. See United States obligation and that it failed to fulfill that 1973); (2d cf. United F.2d 389 n.3 Cir. this case. Lane, F.2d 1077-78 1978).6 opinion of June To determine In his the effective timeta ble, proceed denying we motion for dis periods to the excludable defendants’ trial grounds, extend the six-month deadline be missal on trial 11, 1975 August yond expiration judge specifically Novem identified initial date of announce opinion government’s ber 1973 in this case. In his as the date of the trial, govern August and the denying appellants’ ment of readiness for motions, oppo July Curtin the ment’s 1976 memorandum found —and the parties motion makes speedy concede—that the initial fourteen sition to the trial 1973). Appellants only (2d argue part has been inter 5. This rule of this four- 388 Cir. period requiring preted teen the and one-half month should be ex- in some cases as cludable, trial, grounds (1) analogous on the government for notice of readiness file a provision Speedy 1108, Rollins, of the Trial Act —18 U.S.C. 1111 475 F.2d United States v. 3161(h)(1)(G) permit Favoloro, intended to exclu- 1973); (2d 493 v. United States —was Cir. only periods actually by sion of time consumed 623, 1974); (2d United States 624 Cir. F.2d pretrial hearings, (2) provision that such 1139, (E.D.N. Salzman, F.Supp. 1152-53 417 permissible period limits the of advisement to (2d Y.), grounds, 548 F.2d 395 aff'd on other days. 30 Whether or not the drafters of the 1976), requiring and in other cases Cir. regarding Act had such a narrow intention the government its readiness announce the meaning “proceeding,” of the term lan- the Masullo, court, orally open United States v. guage 5(a) of the District’s Rule Western 217, 1973); 224 United 489 F.2d 50(b) periods during Rule Plan is clear that all 999, 1975). Johnson, (2d Cir. 525 F.2d 1007 judice which motions are sub are excludable. in some detail issue was considered This 5(a) Similarly, period Rule does not limit the 388-89, Pierro, 478 F.2d at States v. United during may time which motions be held under that, consistent where this court concluded Moreover, appellants advisement. to indi- fail require purpose of the notice with the essential what, specifically any, portions cate of this if court, government the to inform the ment 15, 2, July period May initial from 1973 to 1974 trial its readiness for “must communicate pending were motions nor consumed neither the six month within the court some fashion therefore, We, pretrial proceedings. con- other time, period the сourt At the same . .” period sider the entire excludable. practice” file emphasized is to that “the better with the clerk Circuit, notice of readiness written 6. Under the decisions of this the judge’s ‍‌‌‌​‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​‌​​​​​‌‌‍and to serve attention the court for the government informing bears the burden of the copy Id. judge pending on the defendant. trial of its state of readiness 386, Pierro, cases. States v. government adjournment same The fur- an assumption.7 requested file additional open ther Again, claims to have announced in court the record indicates no motions. 11, for period July November 1974 its readiness trial. basis for exclusion of the from claim, however, by any- This unsupported August bringing to five 22 to thus record, thing Judge in the Curtin fails the twenty days months and total non-ex- to mention it in either his considera- initial cludable time from of indictment and date appellants’ tion or extending his reconsideration of expiration the date of the six- 20, govern- trial motion.8 We period August find 1975. month readiness ment chargeable period with the from No- 23, opinion with the June Consistent through 20, vember 1 November when court, accepted August trial we have the next period begins, bringing excludable 11, as the Government an- date “[t]he the total May non-excludable time from trial,” ready al- it was for nounced 1973 to approximate- November 1974 to filed. This though no written notice was ly four days. months and four announcement, within the six-month made adequate period, may be deemed

On November notice defendants moved to inspect grand jury government-with its obli- compliance and to dis minutes miss the District’s Rule gation indictment failure of the under the Western government supply grand jury 50(b) Plans.10 sufficient evidence that films PLAN NEW II. WESTERN DISTRICT’S transported in interstate commerce. Since 1974) (SPEEDY OF TRIAL ACT judice motions were sub June until 1975 when the trial court issued brief Speedy Trial Act Jаnuary On motions, decision denying and order both seq., et became U.S.C. §§ period entire of over seven months man- forth certain effective. This Act set 5(a) must be excluded under Rule required the various datory timetables and Plan, although such extended consideration study plan adopt after district courts to inordinately lengthy.9 motions seems Act, with the in accord formulated 3165-66, pursuant to which

From July §§ June 11 to far as is U.S.C. so plan an interim record, adopted District discernible from the Western no action was (“New Plan”) July taken 1976 to government effective from which would toll predecessor Rule period. July July readiness Unlike Plan, 21; 1975, July however, Plans, required 50(b) this New must attrib- Act, uted to not on the they specifically defendants since Trial focuses Speedy support govern- August opinion again denying In his record is insufficient appellants’ motion, Curtin claim. ment’s government’s did not treat motion set a readiness, equivalent trial date as to a notice of supra. note 5 9. See 1, stating that from date of indictment to June 1976, “there was about four a half supra cited 10. While several of the decisions arguably months of which could be sufficiency support 6 an notice note of oral charged to the Government.” court, persuasive argu- open of readiness in procedure can such a ment be made that government 8. The also claims have satisfied to impermissible where the normal should requirement report- the notice of readiness as, practice a has been to file written notice ing monthly this to the trial case court on indeed, apparently practice in the beginning awaiting basis in as November 1974 time District at the this action was government’s Western trial date. Aside from the own practice Response in United instituted. This court noted States v. reference to such in its to n.3, Pierro, Dismiss, F.2d that “the commend- Defendants’ there 478 at 389 Motion to is no support suggesting practice filing in the record that written notice of able of readi- government or, actually monthly report did if it is followed ... the United States ness did, anyone reports. that Attorney’s received the The trial Southern and West- Offices for the judge practice makes no in reference to such The failure of the ern Districts of New York.” speedy opinions, either of his trial and the comply Attorney States this case United any monthly docket sheet not does reflect that unexplained. procedure with this reports Thus, were made. we conclude that

375 obligation government 6, of the to file a no- asserts in its brief that after December readiness, tice upon obligation adjourn of but of 1976 there was “a whole series of .”11 bring the court request the case to trial within ments at the of the defendants days Plan, 180 conclusory supported of effective date of the This statement is not subject any periods what, by any of exclusion set forth indication in the record as to 3161(h) periods of the Specifically, any, properly Act. Rule if are excludable. Al § 7(a)(1) 13, 5(a)(1) though entry January and Rule of Western Dis- a docket on require govern- trict’s New Plan meeting indicates that a was held and that ready adjourned ment be for trial and January the trial the trial was then from 15, days July commence within 180 February of 1976. 25 to no reasons are case, In this postponement was not selected until stated for the and the record 12, 1977, October days July after does not appellants agreed reflect Nor, actually and trial did not commence waiver of rights. their in the 15, 1977, court, until days findings by November after absence of can the July period, approxi- exception 1976. Of this latter 3161(h)(8)(A) be invoked to mately days properly justice.” serve the excludable. “ends of Mans charges appellants’ field trial counsel with 1,1976, July appellants’ On motion postpone obvious efforts to an imminent speedy dismiss for lack of a trial was by resorting plea trial negotiations from pending finally and was decided January through July 1977 and asserts that August Delay court until occa “permitted the trial court itself to be lulled by pendency subjudice sioned appellants’ by the defendants’ extraordinarily success speedy chargeable trial motion is not delaying ful tactics.” We difficulty because, against appellants observed, believing experienced that the able and tri Didier, F.2d judge al permit would himself to be lulled 1977), to do so “improperly would or that the defense counsel’s conduct can penalize defendants for their invocation of fairly weight bear charge. speedy trial rules and run counter to the it argued While could be time con purposes However, of those rules.” on Au plea negotiations sumed should be ex- gust appellants appealed the trial court’s defendants, cludable since initiated an motion, denial of their trial equally appealing argument can be made appeal, according entry to the docket negotiations that such potentially are September was dismissed government beneficial to the as to the de government’s motion finality. for lack of events, govern fendants. In all both the It period would seem tó us that this must be ment and the obligation court have an excluded because it would otherwise “im negotiations insure that such do not inter properly penalize” the government for the requirements fere with ill-advised action appellants. Decеm On fact, Western District’s New Plan. In un 3, appellants requested adjournment ber 5(f)(1) der Rule New Plan the court beginning on continuing December 6 and responsibility has “the sole setting cases through January 1977, and, therefore, minimum, for trial . .” At if such 44-day period Thus, is also excludable. periods excluded, are to be it seems to us days July through government that the burden is on the or the January days are not excluda court to set forth in the record what are ble. periods excludable or at least what are the January From April operable 19 to leading facts to the exclusion. To sheet, according to otherwise, the docket no action was hold as the suggests, by dissent by taken the party justify- inferring court or either delay by appellants intentional ing period exclusion of the from the manda- wherever the delay reason for a is unre- tory However, timetable. government corded, the would effectively emasculate the Brief, p. Appellee’s

11. 29.

376

Speedy Trial Act delay and would transfer to a the that the July court from 13 to responsibility September defendant which has 1 is “in the interest of the de properly (iii) public”;12 the an ad assigned been to the court fendant and govern- and the journment September from 15 to October ment. Recording is essential to effective 12, again due to illness of defense counsel’s and, implementation indeed, of the Act is period September wife. The from 10(b) Plan, by mandated Rule of the New excludable, September through 14 is not requiring docketing the of all “information however, delay purely because the for respect periods to excludable of time Although the convenience court. . .” In the context of this back- appellants days contend that the 33 from ground, we that days believe the 76 from 15, 1977, when the October 13 to November January April 18 to 1977 are not excluda- commenced, excludable, actual trial are not ble, although, infra, as appears the exclu- 5(e)(2) New Rule of Western District’s period sion of this preclude would not specifically provides Plan that trial in a “[a] violation. jury commence at case shall be deemed to period April The April from 5 to beginning of voir dire.” Because voir 12, 1977 is due to defense coun excludable dire occurred on October we conclude request adjournment sel’s for an necessitat period that thereafter until November ed his schedule. In an April order dated Thus, the 15 is excludable. non-excludable 12, Judge sought Curtin to exclude also the delay July between 1976 and the date of period April from 13 to June 1977 as “in days. trial totals 276 public interest” because of his commit subtracting periods After of ex- ment to the trial of other cases in April, cludable in accordance with the above May early June. Under imposed by computation, 180-day limit 3161(h)(8)(C),however, § the court’s discre Speedy in this Trial Act was exceeded grant tion to upon continuances a finding Even ex by approximately days. case justice” that “the ends of are served there days cluding period the additional explicitly is qualified by the limitation during January April from 19 to that continuance . . . shall be “[n]o sought appellants’ trial counsel granted general because of congestion of negotiate plea agreement, 180-day the court’s calendar . .” See Unit- days. limit exceeded As the Didier, 1188; ed States v. 542 F.2d at Unit- brief, however, government suggests in its Carini, ed States v. (2d 562 F.2d the indictment as a sanction for dismissal of 1977); Roberts, Cir. until violation timetable effective 1975). Therefore, F.2d this the Act. July 1979 is not mandated under 75-day period cannot be excluded. 3162, 3163(c).13 Moreover, this U.S.C. §§ finally empanelled previously court has held that until on October 1977. The following periods Speedy Trial Act date “the violation of immediately preceding that date not, itself, are ex- in and of a sufficient reason (i) adjournment cludable because of dismissing for here.” [indictment] July June 27 to Carini, due to illness of United States wife; (ii) defense however, counsel’s finding may, of Such a violation be con- judge case, period orally The trial states this the record of the either or in writ- 3161(h)(8)(A), ing, finding excludable under 18 U.S.C. its reasons for ends of gives authority justice granting which subsection the court served of such continu- grant finding outweigh public continuances ance the best interests of the justice” thereby. “ends of will be served He and the defendant in a trial.” not, however, comply pro- did with the further subsection, vision of that which states provided 13. While no dismissal sanction is period delay resulting such Plan, “[n]o from a appellants but violation of this could did granted by continuance the court in accordance apply court’s discretion under Rule paragraph with shall be excludable under 48(b) Rules Proce- of the Federal of Criminal forth, this subsection unless the court sets dure for a dismissal.

377 (4) resulting weighed together prejudice sidered as a factor to be the to defendant 531-33, at 92 S.Ct. delay. from the Id. at analy- with other circumstances in a court’s 2192-93; Vispi, v. see also United States sis of claimed violation of a defendant’s Roberts, 333; v. trial, and, 545 F.2d at United States right speedy constitutional to a of these Though at 645. each fact, 515 F.2d finding may “tip such a the scales” in important, other circumstances factors is defendant’s favor where the balance is Wingo, Barker v. may be relevant as well. proceed, close. Id. at 151-52. We accord- At the 92 аt 2193. 407 U.S. at S.Ct. ingly, by appellants’ to the issues raised time, the made it clear that same the Court constitutional claim. trial cannot right speedy to a constitutional specified number of quantified III. AMENDMENT “be into SIXTH 522, 92 at days or months.” Id. at S.Ct. Appellants finally contend Instead, be “a approach the should delay 54-month between indictment and test, conduct of both balancing in which the date rights of trial violated their under the are prosecution the and the defendant speedy Amendment Sixth trial. The weighed.” Id. at 92 S.Ct. guarantees Sixth Amendment all “[i]n case —four length delay of the this prosecutions, criminal the en accused shall unquestionably sub- years and one-half joy right speedy public to a trial.” —is stantial, may not be conclusive and while it government Both the court and the in this issue, weigh it must the constitutional obligation appel case had an affirmative heavily support appellants’ claim that lants public generally bring and to the rights delay their have violated. been Such this matter promptly, on for trial rather clearly enough “trigger” here is the con- permitting delay than whatever rea —for analysis respect to the oth- stitutional drag son —to on for over four and one-half er elements of the Barker test. Id. years. Vispi, v. 545 F.2d (2d 1976). Further, 334 Cir. where the de delay The reasons for the lay case, is as substantial as it inwas varied, indicates, foregoing analysis as the upon government prove burden is delay— but we believe that the bulk of delay justified appel approximately chargeable 31 months —was lants’ rights trial were not violated. inaction, government’s the over Jones, U.S.App.D.C. United States v. 173 Western District of crowded dockets of the (1975); United States York, New and the trial court’s failure to West, U.S.App.D.C. 187-88, motions. expeditiously appellants’ rule (1974); F.2d 256-57 United States v. had little governmеnt may While the have Salzman, F.Supp. (E.D.N.Y.), delays” more control over the “institutional grounds, aff’d on other 548 F.2d 395 court, “the appropriately attributable to the 1976); compare 3162(a)(2). Al U.S.C. § circum ultimate for such responsibility though this is a close case due to some government stances must rest with the appellants’ occasioned the conduct of 531, 92 rather than the defendant.” Id. at counsel, we totality conclude previously at 2193. This court has S.Ct. government of the circumstances that held that: satisfy obligation. has failed to its [rjegardless judge’s of the inaction or the Wingo, part

Barker delay may fact that the have been factors, (1972), L.Ed.2d 101 is of attributable to institutional There, course the back controlling authority. government was not entitled to sit Supreme clearly rely upon pro Court the es notice of enunciated its forma readiness; duty sential factors to be considered in determin it owed the additional ing a denial right monitoring pressing Amendment the case and Sixth (1) to a length reasonably prompt trial as follows: trial. We court for (2) delay; repeatedly emphasized that affirma- delay; reason for the (3) bringing right; government defendant’s assertion tive action during pressing into not for trial” that it “lulled

cases to trial is mandated and Carini, escape duty ground v. period. cannot on the United States that however, delay reasons. important, that the is for institutional F.2d at 149. More speedy the June the fact that after Vispi, v. 545 F.2d at 334. United States made, there was a 16- trial motion was adjournments Though a number of were delay prior the commencement of month to requests by appellants, their attributable to In this court held that the trial. Carini comparison duration was minimal in “especial lengthy repeated periods post-assertion delay was of of court such Moreover, government inaction. unlike a importance” government in that action, complex antitrust fraud the na- they or put court were then on notice ture of this case is not such as would neces- strictly for the “would be held accountable delay sitate the preparation 54 months of in time after the motion to dismiss passage trial, for and it is notable that the actual speedy a trial had been made.” for want of trial, begun, completed once in no more requested Though Id. at 150. defendants days. than four Wingo, Barker v. 407 U.S. adjournments due to illness of de several 531-32, Finally, appel- at 2192. S.Ct. permit to fense wife and in order counsel’s lants assert —and the record indicates —that try early April in 1977 to defense counsel plea negotiations ongoing were for at least case, would not another such continuances year prior speedy a trial to the date of their government necessary have been had the plea negotiations motion. Good faith a press for trial be obligation fulfilled its equated defendant should not be to a waiv- rigid application time.14 A fore that and, rights, er of trial under the rejected in Barker. demand-waiver rule was circumstances, government must as- There, Supreme reiterated Court responsibility sume for the risk of institu- duty upon a defendant rule that there is no delays tional bargain ultimately where the trial, duty bring himself to but Compare is unsuccessful. v. state, in the interest of Roberts, 647; 515 F.2d at United States conc public, bring prosecutions to a swift Carini, 562 F.2d at 149. We find no basis in We do not read Barker as indi lusion.15 support Judge the record to Mansfield’s bring a cating duty of the state “inescap- statement the inference is minimized postponed to trial is defendant appellants engaged plea nego- able” that in continuing, although un by a defendant’s merely delaying tiations “a maneuver.” successful, a favorable efforts to obtain appellants

It is true that did circum plea. We conclude that under such dismissal, upon speedy not move making based appellants’ delay prior in stances grounds, trial approxi until June trial is not sufficient demand for 1976— mately 40 months after the date of indict Amend to vitiate a violation of their Sixth ment —and that this is a consideration rights. ment weighed determining which must be under the Barker The fourth factor rights. violation of their Sixth Amendment appellants evident in prejudice to they Prior to that engaged time had been —is test — First, respects. the extend plea negotiations government this case in two with trial, unavoidably increase the necessity avoid ed would and it is not by appel- “anxiety unreasonable to assume and concern” suffered Court, letter, Wingo, government 407 U.S. 14. The 15. The Barker in its brief cites a (1972), September stated: dated from Assistant Unit- Attorney ed States Williams to the attri- court duty bring himself to A defendant has no buting adjournment of fifteen scheduled trial; duty well as the the State has that solely appel- trial dates since June duty insuring is consistent lants. In the absence in the of corroboration Moreover, process. . soci- due required by 10(b) record as Rule of the New bringing ety particular swift interest has Plan, this assertion must be viewed as a self- society’s representatives prosecutions, serving government. declaration protect that interest. who should are the ones lant Levene as a tween 1972 pending public result of crim- and 1976 attitudes Wingo, inal indictment. sexually Barker toward films explicit and concludes at way S.Ct. at While unique changed 2193. those had in a attitudes Levene, appellant to prejudice this kind of appellants specifically, detrimentаl to — especially significant becomes pro- where were far accept- “attitudes in 1972-73 more longed for period ing they during of four and one-half and liberal than have been years after Second, date year government of indictment. the last The [1975-76].” important, more possible and impair- experts is the offered no other in this to field appellants’ ment of ability present to dispute a de- opinion, expe- his in view and of his may fense which have been caused the qualifications opinion rience and his can Barker, delay. As stated in id: Where, hardly be as dismissed frivolous.17 here, these as on a of [interests], point Of the most case turns morals serious is last, view, the inability important because the it is of a defend- the trial be ant adequately to prepare community his case framed in terms the skews of stan- system. to fairness of the existing entire There dards time alleged at the of the prejudice offense, also if defense witnesses are which in this case was 1973. Con- accurately unable to recall events sequently, say it is to the impossible past. distant memory, however, Loss of moral of prevailing standards at the time always is not in the reflected record be- the years trial over later four were the forgotten cause what has been can rarely existing same as those on the date of indict- be shown. Hence, ment. was all the there more rea- son for government trial. Appellant Levene’s uncontradicted affida- appellant relies on the fact that Levene has vit, sworn to in June describes the been free on bail since 1973 and has failed delay difficulties caused the in preparing demonstrate adverse effect on his for trial. The art director and the story reputation income or as a result of this of longer editor “Belinda” could no be locat- protracted prosecution. As Barker indi- ed, actresses, and certain actors and who cates, however, prejudice takes various previously agreed testify, had refused to forms, upon analysis, and based the above attend trial they might for fear that also be we find that the factor of the Barker fourth subject to criminal prosecution if a verdict weighed test is appropriately appellants’ in unfavorable to defendants returned favor.18 jury.16 Also submitted at that time ‍‌‌‌​‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​‌​​​​​‌‌‍was Winick, a letter written Finally, appellants’ Charles rights Profes- of violation Sociology City sor of at College of New under the District’s New Western Plan —oc- York, in which changes he evaluates curring entirety be- in appellants’ its after appellant affidavit, appears appeared In jour- Levene’s it number of his studies during pendency this Filming, Psychiatry, of action an actor nals such as Films and and conspiracy by was convicted of Review, federal court Sociological American and he has been Memphis, participa- Tennessee based on his recipient grants period of federal over a allegedly picture. in an tion Appellants obscene motion twenty years. widely publicized claim that this willingness conviction chilled the of several ac- passing upon alleged 18. We are not here and tors actresses in the film involved here in film, obscenity right but trial, and, result, issue attend as a appellants Consequently, trial. to a we agreement testify appel- retracted their Report believe F.B.I. that the 1973 annexed lants’ behalf. appendix dissent as an is irrelevant. If it annexed to there could no show that have been According Winick, to Profеssor his evalua- prejudice jury using because a from public many years tion of attitudes is “based on exactly to hold investigation,” standards would have the same 1977, involving studies conducted way sitting hold did we Marijuana for the President’s Commission on much; juries’ Drug presupposes think that and too Abuse and for the Commission on Obscenity guessed, especially simply Pornography verdicts cannot service as con- tributing involving presumption editor for criminal sex research of cases Medical Opinion and Review co-editor of the innocence. Annual Review of Studies Deviance. A 2192. We believe that sup which speedy trial motion —is a factor significantly facts in Lane ports appellants’ differ our conclusion that Sixth among Notable present facts in the case. rights We Amendment have been violated. Lane are the absence in other circumstances cannot Mansfield’s state subscribe Speedy of the District Court of a violation Speedy ment Trial violation is that a Plan, defendant Trial Act the failure of “largely irrelevant” since it has been estab resulting from any prejudice demonstrate lished in this Circuit that a “violation of continuing delay, the absence of Speedy proper Trial Act is a factor to be impor- mitigate plea negotiations weighed analysis whether in our de [a asserting delay in tance of the defendant’s right his constitutional was denied fendant] right. speedy his Carini, speedy to a trial.” v. United States government 562 F.2d at 148. The cites considering all the facts in After Lane, supra, authority balance, case, that, appel- States we believe support appellants’ of its contention that rights lants’ Amendment Sixth Accordingly, trial claims should be denied. As trial have been violated. Barker, every are reversed aр judgments stated in case must be of conviction proached indictment. on an hoc basis. 407 instructions to dismiss the ad U.S.

APPENDIX , at OAKES, Judge (concurring spe- grounds Circuit itself and of reversal cially): the elements so modifies least if it crime, see it creates a different crime that join I opinion Bartels’ respect 212, 80 States, v. United Stirone to the deprivation of a speedy Al- trial. (1960); parte Ex 270, 4 L.Ed.2d S.Ct. though, if this were the only issue in the 781, 30 L.Ed. 849 Bain, 121 U.S. S.Ct. case, might I part as the better appellate True, a material we have said (1887). discretion be agreeable to remand for fur- “prejudiced occurs if it variance ther findings regarding reasons for de their to make the defendants ability of and resulting prejudice, Judge Bartels does . .” United charge fense to point out that “the burden govern- is on the (2d Knuckles, 311-12 F.2d States v. ment or the to set court forth in the record” Somers, 496 1978); United periods excludable or “at least denied, Cir.), 419 U.S. operable cert. F.2d leading facts to the exclusion.” In any event, (1974). But at this 42 L.Ed.2d 58 stage already of an drawn-out proceeding, course, right to involved, remand would be what is inappropriate. against one. charges be informed States, 295 U.S. Berger v. United Moreover, it seems to me inde- that on the (1935). Here 629, 79 L.Ed. 1314 S.Ct. pendent, interrelated, albeit grounds the shipped from was that the film charge was judgment of conviction cannot stand. city the of Jersey to of New the state indictment charged transportation an ob- of by prejudiced were Appellants Buffalo. commerce, scene film “in interstate might they proof in because the variance means of common carriers . from . vigorously than disputed more well have the Jersey City State of New to the of able, that supra, note 1 they were Buffalo . . .” But the Government Paramus, through proved York, the film only shipment trаnsported from New York, New sought prove to Buffalo and Jersey. New its Grey- interstate character virtue of a Inc., Lines, hound manager’s terminal testi- True, argues that there the Government mony, made Greyhound’s in reliance on (a) because surprise could have been no (GX 10), Timetable No. 70 that at the time appellants [ap- were “as far as aware that question in York, “our service between New pellant knew all his films since of Levene] York, Buffalo, New York, operat- and New Releasing, inception Aquarius of Inc. ed through Jersey of New . State City in Ware- were stored the New York Paramus, specifically] Town [and of (Gov’t 13) (b) through pre- house” Br. New Jersey.”1 going This was a variance discovery appellants of Gov’t learned to a 9, vital Greyhound showing element of the Ex. bill crime under 18 Lines bus City that the went from the New York U.S.C. film may 1462. A material § variance Paramus, On appellants through cross-examination Jersey. counsel for New 1 note these did elicit they may prejudice that the witness could not what tell omissions on bear bus appellant carried the film whether it was detoured from the variance between the day, on charge proof. that and the witness “we in the conceded that indictment and the will alter our routes because of condi- traffic suggests The Government that the issue of ” inquire, tions. . Counsel did not how- timely variance was not raised. But at ever, 3300, westbound, as to Bus No. the 9:45 close of Government’s case and of the de- appears Rochester, express then appel- fense case and of verdict return Greyhound 70, to Buffalo. Timetable No. Table grounds lants moved dismissal on insuffi- explore effective Jan. evidence, Nor did he ciency particular and in failure January, 1973, the use of the edition of Rus- prove shiрment made in inter- sell’s Official National appears Motor Coach Guide state commerce. It that the defendant which, appellants us, States, advise several indicates v. Stirone United 361 U.S. Greyhound (Nos. 16, other (1960), schedules 4 L.Ed.2d did not raise 255, 260) showing directly. routes that do not run the variance issue more “inter York, plant” proof new while the showed Buffalo, termi- New terminal exportation from Pennsyl information, ap- ference with the nal. But armed with this in the manufactured pellants fully prepared to meet vania of steel to be Colasurdo, v. indictment, United States the film had charge plant.” new 1971) (emphasis New transported “from the State of been denied, prepa- City of Buffalo.” This cert. Jersey to the 92 S.Ct. 406 U.S. original), ration, however, hardly have enabled could (1972); see also 32 L.Ed.2d 116 charge that them meet an amended Knuckles, supra, F.2d at 312. York, New from New transported here, film was cannot be made But such a distinction York, by way Buffalo city from New shipment charge where the Paramus, Jersey. By hindsight one New thinly (somewhat Jersey proof courses, see note can of several think through New Jersey.2 best) shipment supra, counsel might pursued have to meet controlling. Stirone I think Thus he not do charge; such an amended did Even Greyhound wrong if I am about the variance so when first confronted issue, indicative my however, mind testimony proof is to there was no witness’s appellants prejudice. Aquarius Releasing, Levene surprise Inc.,3 knowingly4 used interstate commerce to Buffa- New York previously shipment distin- for the that we I note in- indict- contends lo. The Government the basis guished Stirone of 18 U.S.C. requirement terstate commerce “interference alleged that case ment jurisdictional, citing United States Penn- 1462 is importation into with the extortion Feola, 95 S.Ct. building a 420 U.S. used to be sylvаnia of sand Judge by distinguished pertinent part: 2. Leventhal has Stirone 18 U.S.C. in § 1462 reads saying prosecution that Stirone the was “[i]n any knowingly Whoever . . . uses relying complex distinctly at trial on a of facts carrier, carriage . common for in in- grand jury different from that which the set foreign terstate or commerce— forth in the indictment ... In the case (a) any motion-picture . obscene . . us, single before there is a set of . . facts film, States, U.S.App.D.C. Jackson v. United 123 imprisoned Shall be fined ... or . . denied, 359 F.2d cert. 385 157, enough, contrary (1966). It is not trial court’s to the 87 S.Ct. 17 L.Ed.2d 104 charge, knowledge Garguilo, See that of a common also United States v. use shown; (2d Here, seem, 1977). requires knowing 63 carrier be n.2 Cir. the statute it would Stirone, “complex carriage there is a different use of such a carrier “for in interstate involved, relating facts” foreign to the use of a com or In v. United commerce.” Gold carrier, carriage mon for in interstate com States, 1967); (9th 378 F.2d 588 Cir. merce, of an obscene film. (E.D.Mo. Kelly, F.Supp. 1374 My colleague Judge 1975), grounds, Mansfield believes that rev’d on other 529 F.2d 1365 Knuckles, Rubin, United States v. (8th 1976); 581 F.2d 305 Cir. and United States v. 1978), contrary dictates a result. But Knuckles F.Supp. (C.D.Cal.1970), 950 Government, cases relied emphasized that a variance as to the narcotics question the sole time, place, substance is immaterial when “the whether there was “use” of a common carrier people, object proved at trial are in all or whether the defendant was aware of the respects alleged those the indict- shipment, contents or character of the Here, contrast, ment.” Id. at 311. there is ship whether that defendant knew that, “place,” a substantial variance as to inas (it ments were in disputed was un interstate commerce Stirone, goes jurisdiction of the federal interstate). shipments that presumе courts. I do not think that we can States, 119-24, Hamling v. United 418 U.S. grand jury that a would have indicted for a (1974), 41 L.Ed.2d 590 involved S.Ct. shipment that, most, merely passed through at proscribes knowing 18 U.S.C. which § Jersey. New matter, use of the mails unmailable a stat bar; obscene, Assuming appel- at that the film ute with a different thrust from the one stand, knowledge required lant New Buffalo’s under 1461 relates to § conviction would view, my nature, content, film, speedy if the trial and variance issues and character of mails, against knowing were determined it. and to the use of the not to carrier, (1975), shipment where the court noted common that a L.Ed.2d between points existence the fact that confers one pass through that “the two state would jurisdiction one in the state, need not be especially federal another when it is not at all perpetrates actor at the time he mind of obvious map any from road that there is stat- made criminal the federal the act more direct route from New City York n.9, ute,” at id. at Buffalo than the New Through- York State even upheld thus a conviction for assault way (U.S. Highway 87), Interstate that though the defendant did not know his does not cross state line. in Feola was a federal officer.5 But

victim judgment Thus I reverse the on would statutory require language did not such well, these grounds although two knowledge; indeed ‍‌‌‌​‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​‌​​​​​‌‌‍the conceded defendant unnecessary are to reach if Bartels necessary scienter was not a element I are correct trial issue. offense. Id. at 95 S.Ct. 1255. very Court was careful hold And the MANSFIELD, Judge (dissenting): Circuit (18 111) the statute in issue § U.S.C. embody require- unexpressed “an did not I The record indicates dissent. that an assailant be aware that his ment bringing the trial delay in defendants (emphasis is a federal add- victim officer” tac largely dilatory to the attributable ed). Although at Id. 95 S.Ct. 1264.6 trial, attorney postponing tics of their might appear overly it technical to to some despite the readiness Government’s require proof statute to of know- construe get case judge’s repeated efforts to commerce, when, carriage ing in interstate timely to trial. There was no assertion argues, as the Government “federal [crimi- right their to a defendants of trial. jurisdiction areas re- has broadened in nal] cognizable de legally prejudice No commerce,” a nexus quiring to interstate been shown. Thus the stan fendants has we must remember that 18 1462 is U.S.C. Wingo, dards of Barker 407 U.S. prohibition against criminal conduct (1972), L.Ed.2d 101 S. Ct. potential protection. has First Amendment met in this case. clearly not been specifically require- has Congress imposed “knowingly,” supra. injus- ment of note 4 Con- The court’s decision works a serious Aquarius tice, cededly proof rewarding there was no at- defendants for their kpew torney’s stalling successful from New maneuvers. shipment Levene Moreover, City majority engaged has un- York to Buffalo in interstate traveled justifiable appellate fact-finding, based Although argued that may commerce. it be largely assumptions on evi- rather than on were aware of certain contracts appellants view, my dence. In at the very least Film which with Bonded Distributors under majority, reversing before on the basis films would across various be distributed record, disputed country incomplete facts countries, and even to other I do see should remand the case to the jury this, not how a district court could infer from any supposed findings regarding for the reasons for the knowledge use of a ever, carriage use of a explicitly common carrier “for in inter- a statute that involve does state require commerce.” Other cаses knowledge of the interstate movement

the Government cites involve with statutes lan- goods of the stolen and hence a statute differ- guage different from 18 U.S.C. 1462. § ent from one in issue here. applied Viruet, 5. Feola in We United States 295, very (2d 1976) (per curiam) point out 539 F.2d 297 6. The was also careful Cir. court (unnecessary prove merely calling statutory requirement under 18 U.S.C. 659 § knowledge hijacked “jurisdictional” inquiry; truck would be mov not end the does ing commerce), in interstate United “jurisdictional question further is whether it is Green, 229, (2d 523 F.2d 233-34 Cir. only,” or instead an element of the offense. denied, 1975), 1074, 858, cert. 423 U.S. S.Ct. n.9, 420 U.S. at 676 95 S.Ct. at 1255. cases, (1976) (same). L.Ed.2d how- Both resulting prejudice, any, Although if was not violated. the time from the defendants. long, indictment to trial record repeatedly demonstrates that if the defend- The majority length lists considerable really ants an earlier trial had wanted concept many its days of how during the early could at least have had one as June long period filing from the of the indict- 1, 1976, (to Judge when Curtin whom Chief ment until trial be should labeled as “ex- assigned purposes) case was for all or- cludable” and “non-excludable” under the drawn, 50(b) probably Western dered that a Rule be District’s Plan and its Speedy ready Trial Act earlier. The Plan which went Government for into ef- July fect my In proce- early view this August at least as dure purpose serves no Indeed, useful and is mis- by written notice dated November leading, majority since as the concedes 36) (App. the Government advised there was no violation the former Plan defense counsel the case would be and the Speedy prohibits Act Trial dismissal 11,1974 called on I November Part of the for pre-July violation of the purpose Buffalo for the U.S. Courthouse in Carini, latter Plan. See United States v. DATE.” The “SETTING TRIAL docket 562 F.2d (2d 1977). Cir. hearing adjourned shows that

In enacting Spеedy meeting November for a Trial Act Con- gress recognized four-year that a phase-in Curtin but there is no record of what period required would be transpired before the meeting. sanc- at that tion of dismissal non-compliance might repeated What were for the the reasons imposed, 3163(c), see 18 U.S.C. it since adjournment Appen- of the trial date? The would many take district courts that much record, obviously dix and while docketed time to eliminate their criminal case back- quite incomplete, furnish sufficient infor- logs and to obtain the personnel, additional strong mation support inference that facilities, systems and new needed to meet counsel, defense than the rather Govern- permanent time limits go which would court, mainly responsible ment or the 'was into July effect 1979. Viewed realistical- delay. sought for the never Defendants ly, the interim time represented limits have trial; contrary, they repeatedly on the hopes rather than firm mandates. Cf. sought to avoid trial. Amendola, States v. 1977) (“minimal” Following filing violation of indictment Connecticut Speedy Trial Plan does not May granted the Judge Curtin de- warrant dismissal). proceedings fendants’ defer all motion to June, 1973, until the when certain end of my view, In excludability or non-ex- cases pending the United before States Su- cludability of time under the terms of these preme Court, could have affected the prior largely Plans is irrelevant since their prosecution case, present would have standards substantially differ from the part been decided.1 In latter of 1973 four-factor test established Barker v. pretrial filed defendants then numerous Wingo, 407 motions, including motions to dismiss the (1972), L.Ed.2d 101 for determining wheth- (Cr. 1973-118), er a indictment in a case related defendant’s right Sixth Amendment to a speedy trial, supported by distinguished affidavits and briеfs necessi- from statu- tory rights, tating answering has affidavits and briefs from been violated. When the Barker Wingo v. argument standards are oral applied, it is Government and on Feb- beyond clear peradventure 14, ruary 1974, that the defend- which culminated in the ants’ right 15, constitutional to a speedy trial July court’s denial of the motions on California, 15, California, (1973); Kaplan See Miller v. 413 U.S. 93 37 L.Ed.2d 446 2607, (1973), 115, 2680, 37 L.Ed.2d 419 decided on 413 U.S. 492 June 93 S.Ct. 37 L.Ed.2d 21, obscenity by (1973), 1973. Other cases decided United States v. 200-Foot Reels Supreme day Film, 123, Super Court that same were Paris Adult 8 mm. 413 U.S. 93 S.Ct. Slaton, 49, 2628, 2665, (1973). Theatre I 413 U.S. 93 S.Ct. 37 L.Ed.2d 500 28), (App. again sought opportunity 1974. There ef- an to followed Government’s 1974, November, get plea dispose fort in to a trial date discuss a that would 24, apparently again, February this time on fixed. Additional motions were case. Once cases, 26, 27), including (App. replied filed in related motions to Williams that his dismiss, changed, which were that he was “not position denied court on had not 10, plea accept corporate June of a mind to a Inc.,” Aquarius Releasing, but that he Immediately upon denial of the latter Detsky. happy would be to meet with Seymour motions defense counsel S. Det- sky, during period prior whose City, picture offices were in New York Thus the June, 1976, 34) letter June who (App. dated is one defendants but, Attorney seeking asking Assistant Williams in Buffa- were not for a trial U.S. or lo, plea initiated bargaining negotiations. contrary, trying on the were to induce However, Attorney by accept plea only by when the letter Government and, July (App. 33) dated when Detsky corporate advised defendants matter, willing he was Detsky any to discuss the Government twice refused such bar- 32) July (App. gain, asking reopen plea negotia- letter dated sought tions, delay engage- disposi- because of his own other implying thus that some ment in a Attorney by might negotiated. trial. The U.S. tion 35) July (App. letter dated offered short, objective In was to the defendants’ accept guilty plea from defendants corpo- negotiating avoid or Theatres, Inc., Loew’s Arena and Levene to when, guilty plea. rate This was confirmed indictment, any one adding count of “If failed, stalling after defendants’ tactics I you by August do not hear from Judge Curtin met with on June counsel I will move this matter for immediate tri- begin jury in the selection of result, August al.” As a ac- (App. 38). Thereupon case sheet, cording to the Judge docket Curtin Detsky “Mr. moved for dismissal on the placed directed “that case be on the [the] ground that not the Government had af- trial calendar.” forded his clients a trial. Fur- trial, Detsky, Faced with according to his thermore, he contended that he did not September (App. 31) letters dated Benjamin represent defendant Abrams September (App. 30), reopened although the court records indicated plea negotiations by having his client write contrary. reported to the court Later he a letter Attorney to Assistant U.S. Williams represent that he did Abrams but Abrams 57), (App. by making appointment country. The Government’s had left go to Buffalo to see Williams -about that the FBI investi- represents affidavit However, Detsky’s September matter. 9th still lives gation reveals that Mr. Abrams “telephoned letter concedes that he then Buffalo, ap- It in the New York area. appoint- office to cancel that [Williams’] pears has been the Government engaged ment because I was then in a necessary in this case ready at all times beyond continued trial which extended Putting . . aside the fact speculated.” dates I had In a letter dated court of 1975 has been since summer 30,1975, September replied Williams he was cases, during timе trying criminal at no willing to meet on October October period urge a motion did defense following (except time the week Octo- That motion present similar to the one. 13) ber previously but that “as indicated” set for filed until the date he was “not of a accept corporate mind to 38-39, Opin. (App. selection.” Mem. plea.” 29). (App. 6/23/76) Curtin, (emphasis sup- plied).

The hap- record does not reveal what 23, pened Curtin, June foregoing as a result of the decision dated Judge corre- his 1976, spondence except the motion to dis- promptly that almost five months denied 10, miss, later Abrams Detsky, by February directing letter of that if defendant represented by was not Detsky Thereupon, he should it necessary appoint became to retain counsel ready July and be for Abrams, trial on counsel for defendant whom Det- 20, 1976. sky again disclaimed as his client after hav- ing claimed Abrams as his client on other availing Instead of oppor- himself of the having appeared occasions and as his coun- tunity to have the go defendants to trial sel of “on-again, off-again” record. This immediately, Detsky Mr. moved the court representation of Abrams afforded another to decision, reconsider contending its in a defense mechanism for of trial. June 28 letter Judge to Curtin that defend- ants had not moved to dismiss earlier on course, busy Of district court such as grounds because had been Western District with judges three trying “to plea work out a corpora- for the hardly can expected drop to everything tions dismissing as to the individuals” by remand of a criminal case and adding “I assumed that I would receive Court Appeals bring of that case imme- word on the proposals. aforesaid I Instead diately However, Judge to trial. Curtin received a indicating statement readiness promptly, acted scheduling the case for trial for trial. I state this so that the Court on December Thereupon 1976. Mr. Det- would not believe that idly by we sat abid- sky, just effectively as he had done in June ing our hoping time the United States August trial, on the eve of moved three would forget we 40). existed.” (App. days before trial for a postponement, time because of the death in Ireland of the truth, course, of was that the U.S. mother of one of the defendants. Trial was Attorney long had since repeatedly stated adjourned January until writing Detsky that he would not agree any proposals, such despite which Faced with trial January on Detsky Detsky had reopened thereafter negotia- by January letter dated Judge tions. Not surprisingly, the court on Au- Curtin offered Aquarius defendant gust 1976, denied defendants’ motion for Inc., Releasing, perhaps Loew’s Thea reconsideration and set selection for tres, Inc., plead guilty if the case were August dismissed as to the individual defendants (as and this time advised the court If there had been doubt about the de- years, case for almost fendants’ see At consistent U.S. purpose from the in- 1/2 7/28/75, ception torney’s 35) letter App. case delaying trial, it was Attorney removed had their refused to entertain the next August move. On 10, 1976, Thereupon offer. day meeting set the court held a selection of the jury, January defendants filed a which trial was appeal notice of adjourned February Curtin’s interlocutory, for reasons nonap- pealable denying appearing order their the record. Thereafter motion to dis- miss proceeds vein, the case for record lack of a in the same trial. with patently counsel, This defense frivolous move served the whenever the court was purpose prevеnting ready try case, the case from going successfully obtaining day to trial adjournments, as scheduled. Detsky either because Mr. was actively pursuing plea negotiations or anyone As slightest even the knowl- actively engaged in trial elsewhere edge practice of federal predict- could have (see, 77), e. g., App. or because he had filed ed, the appeal was dismissed us on Sep- motions, new such as a change motion for tember jurisdiction. for lack of It venue, or the like. may reasonably be inferred from this record appeal was taken in bad faith as a With the aid hindsight apparent it is designed maneuver trial, block a prompt that the trial court was altogether too liber- which it doing. succeeded in The docket al in permitting itself to be lulled shows that pertinent papers were not defendants’ extraordinarily successful de- returned our court to the Western laying Dis- tactics into believing postpone- trict of New September York until 1976. ments were reasonable and might lead to it is not entitled to have The defendant disposition the without trial. Part case may what turn out undoubtedly ways negotiate attributa- of their success was both —to judicial advantageous disposition lack of sufficient for him ble to the court’s to be an reached, Herculean to dis- to personnel and, disposition and its efforts is if no such huge backlog July pose of a before of his Amendment claim a violation Sixth Speedy the the date when sanctions under trial. right speedy to a go present pur- For Trial Act into effect. Carini, supra, v. relied on United States however, important thing is that poses, the inapposite. majority, wholly by the not be rewarded for the defendants should directly respon There the Government was permits manipulation. their own To do so delay. In satisfaction sible for the distortion, the debasement and abuse of Carini, against president the charges right speedy to a trial under the Sixth Co., the Government Carini Construction Amendment, which was never intended to guilty plea to accept corporate a offered to protect everything within those who do violation of 26 charging a misdemeanor power delay holding their to or defeat 7512(b) by failing deposit with U.S.C. § possible. long of a trial as As Su- taxes, he would demon holding provided preme Wingo, Court stated in Barker v. good faith period strate over a of time his circumstances, “barring extraordinary we by compliance with the Internal scrupulous be that a would reluctant indeed to rule withholding requirement. Revenue Code’s defendant was denied this constitutional year pass then allowed to More than indicates, right strongly on a record that any plea being Then the without entered. one, does this the defendant did not withdrawn the Government offer was speedy want a trial.” 407 delay properly policy reasons. The at 2195. There are no such “extraor- because against assessed Government dinary circumstances” in this case. offer, precedent, to its condition due delay Both the reasons for the between delay which the de proposed an automatic indictment and trial and the lack of time- could not avoid if he wished to fendant ly speedy rights assertion of should also United v. Rob participate. See States weigh heavily against here. the defendants erts, (2d 1975). F.2d Cir. No agree majority’s I cannot with the conclu- delay proposed postponement such or sion that in determining whether a defend- plead present in the by any of the offers to right ant’s Sixth Amendment Moreovеr, except case. for one flat violated, trial has been time expended delay and involving offer no Government parties plea negotiations should having precedent, the offers no conditions weighed against the ne- Government. Such appear proposals by here all been gotiations one-way are not a street but a defendants, not the Government. defendant, bilateral affair in which the majority’s state agree can I with the Nor just public, the Government or the stands to when the de supra) (p. ment any resulting compromise benefit from negotiations plea “engaged fendants accepted by A defendant’s court. necessity to avoid government with the obligated engage plea counsel is not trial, it is not unreasonable so, bargaining. When he does it is because into not they were ‘lulled assume process he believes that the is in his client’s cit period,” during trial’ pressing for prospect interest and that of benefit Carini, excusing thus ing United States warrants the occasioned the bar- their asserting long delay defendants’ gaining. showing Absent of bad faith here is record trial. The right to a unjustified change position negotia contrary. plea exactly part (as Government’s was the case Unit- reinstituted initiated and tions here were Carini, ed defendants, notwithstanding 1977)), charge time there is no reason to Sep early as refusal as flat Government’s plea bargaining against devoted to proffered accept tember Government rather than the defendant. problem. Moreover, corporate pleas of the as far is satisfaction as.the record charges against the individuals. The infer- they long may disappeared concerned have inescapable ence is the defеndants before when the case could first have using delaying were this tactic as a maneu- brought been to trial but for the defend- anyone ver. was If “lulled” it the own delaying ants’ tactics. Government, the not defendants. majority these believe For reasons I the Didier, Similarly, United States v. grave reversing makes a the mistake 1976), F.2d 1182 the relied on dismissing convictions and the indictments majority proposition period for the that the ground on the the defendants’ Sixth during speedy trial which a motion was sub right Amendment trial was judice charged against not be should the violated. defendant, clearly distinguishable. There agree Nor can I either of the two motions to dismiss on trial grounds by Judge advanced Oakes warrants grounds were not filed on the eve of trial slight reversal. The variance between purpose delay, the obvious of seeking proof indictment and the at trial was clear here, was the case but months before the ly now “[Cjonvictions immaterial. are not first retrial date. except resulting set aside for variance disagree I also with the majority’s conclu- prejudice substantial to the defendant.” sion that any defendants have made Knuckles, United States v. showing prejudice of as a result of the (2d Cir.), denied, cert. delay. Appellant hardly Levene can com- (1978). 58 L.Ed.2d 659 plain of “anxiety and concern” attributable long to the pendency of when trial Aquarius Defendants Levene and Releas- delay largely making his own and Inc. ing, charged knowingly when deliberately he sought and obtained 26, 1973, transporting January on or about postponement much earlier dates. trial an obscene film entitled “in- “Belinda” in important More the suggestion that commerce, terstate by means of common ability present may defense have been carriers, wit, Inc., Film Delivery, State impairеd by strikes asme frivo- Lines-East, Greyhound Inc., lous. appears If what public media is Buffalo, Jersey City of New State any criterion, community attitudes toward in the State and Western District of New explicit sex, assuming they changed at York” in of 18 1462 & 2. violation U.S.C. §§ all since have become more liberal and trial, light The evidence at viewed in the event, tolerant. In it unlikely Government, most favorable it to the subject the view on that of actors and ac- be, must established that those two defend- played parts tresses who in “Belinda” would knowingly ants transported film “Belin- carry any weight at all. The acid test January da” on or about using the would be impressions created a view- Delivery, common carriers Film Inc. State ing itself, of the film “Belinda” summarized Greyhound Lines-East, Inc., from New hereto, in Appendix A the notes of two FBI City through Jersey York the State of New agents they which were made as viewed the Buffalo, in violation of 18 U.S.C. §§ film on January 1973. Well aware that Corp. & 2. New Amusement Buffalo the film could be viewed the court and charged with tak- knowingly causing to be jury, the agents two would have no motive Lines-East, ‍‌‌‌​‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​‌​​​​​‌‌‍Greyhound en from Inc. in Buf- other than to make an accurate record of film on January falo the “Belinda” what Appendix saw. A demon- in violation of 1462 & 2. §§ U.S.C. jury’s strates —as the verdict confirms— evidence, again favorably most viewed hard, explicit por- chances such Government, allega- those established nography being by testimony saved of an tions. story art director or editor were nil. Find- ing short, many substitute witnesses for In out con- the art director details story pose editor should serious tained the two relevant counts of indictment, only alleged variance is that is the exact nature of the substance in- volved, cocaine; time, the indictment read “from the State of place, heroin or Jersey City New of Buffalo” rather people, object in all proved are “through the Jersey than State New respects in . in- alleged those date, film, City Buffalo.” The the the of (emphasis origi- dictment.” Id. at 311 carriers, destination, the two the the names nal). have preju- Such a variance “cannot of the of the defendants and sections Title ability the of diced the defendants to make 18 all completely were accurate. charge their defense to the that violat- material, Id., For a variance to it is neces citing 21 ed U.S.C. 841.” United rely sary prosecution at trial Garguilo, supra. v. States the de- Since “fairly legal evidence theories not em “sufficiently apprised fendants were charges braced the made in the indict charges against them” and there was laid Garguilo, ment.” United v. F.2d States 554 danger prosecution a the no of second for 1977),quoting United States offense, id., was same the variance not ma- Silverman, (2d Cir.), v. 430 F.2d terial and the conviction affirmed even grounds, modified on other 439 F.2d 1198 though presumably theory” “cocaine denied, (1970), cert. 402 U.S. S.Ct. presented grand jury. not to the (1971), v. L.Ed.2d 123 and Russell case, In the present the variance is States, 793, 82 United 369 U.S. S.Ct. trip fortiori immaterial. Whether the be- (Harlan, J., (1962) L.Ed.2d dis gan Jersey in New and ended in or Buffalo senting). theory at trial evidence began City, in New York went into New “fairly charges” here were embraced in the Jersey, then continued from New Jer- aspect because the essence of the interstate sey to not the Buffalo does affect elements of particular the indictment was that a certainly slightest. of the crime in the It particular day obscene film had moved on a does not the at trial a proved render offense particular on a common carrier between alleged the different crime from the one Jersey jury found, New and Buffalo. The Nor it have affected indictment. should instructions, proper under the ac that film trial. preparation defense counsel’s As tually moved “from the State of New Jer concedes, Judge the had Oakes defendants sey City of Buffalo.” Whether the Greyhound showing that the Lines bus bill Jersey film started in New or started else transportation the the initiated from of film where is as long not material the City the the New York bus terminal. Since proved passage Government from New Jer indictment, read, alleged only that occurred, literally sey to Buffalo Buffalo as the passed Jersey point. the film had from New destination The indictment itself trip literally allege not that the allege does that the Buffalo and did not film’s transportation began Jersey. in New had Jersey, started in New defense counsel ample investigate whether such in- time to present The variance in the case is far Indeed, passage actually terstate occurred. important less than that in United States origin point the of of when issue the Knuckles, supra, concurred in es-my trial, during raised at trip film’s was first case, teemed brother In the Oakes. testimony of the second Government indictment contained substantive count witness, prepared. well defense counsel was charging posses- distribution of heroin and the witness he asked On cross-examination sion of heroin with intent distribute on or Greyhound route particular about a bus about certain date. The trial court Poughkeepsie City through from New York charged jury that it if it could convict leaving Albany ever to Buffalo without all found elements offense estab- he the fact New York elicited beyond State lished a reasonable if doubt even ac- changed were jury that routes sоmetimes found substance was co- no cording There was caine to traffic conditions. reject- rather than heroin. court This introduction variance, objection by ed a claim defendants noting of material Jersey only concerning New alleged appellants testimony “the variance short, pass-through.2 tinctly grand In this record fails to different from that which the surprise demonstrate or prejudice even set forth in the indictment.” See part defense interstate Knuckles, supra, trip originate involved did New Jer- Stirone, at 312. In indictment con- sey. suggested by The “several courses” sand, cerned with the movement whereas hindsight fully Oakes in availa- prospec- at trial evidence included the through foresight ble to the defense as well. tive point movement of steel at a later complex time. “a obviously This facts States, Stirone v. United 361 U.S. distinctly different” from the indictment. (1960), L.Ed.2d 252 which Judge case, present In the vari- alleged regards controlling, easily Oakes dis- very ance involves one detail— tinguished. minor In Stirone the indictment charged trip Jersey whether the in New started illegally the defendant ob- through started structed the elsewhere and continued movement of sand interstate date, Jersey. film, commerce Pennsylvania. into The New The the carri- Govern- the ers, ment introduced evidence people at trial that there and the all the involved were illegal was also interference the applicable defend- same. be if the Stirone would prospective ant with the movement of steel Government had the convicted defendants Pennsylvania, out of and the per- was shipment on of a differ- evidence later of a mitted to if convict either interference was film, ent but obviously that is not case. this beyond established a reasonable doubt. Judge suggests Oakes also that U.S.C. reversed, Supreme The holding Court that requires proof that § the defendants there was a material variance. knowingly used interstate commerce Judge appears argue Oakes to that the film, shipment compared for the of as the material variance in solely Stirone was that proof they knowingly that used a common exportation compared as importation. carrier which then in inter- fact traveled in true, Even if alleged that were the variance state agree. commerce. I cannot is here far less exporta- relevant. Proof of imposes imprison- The statute a fine or Pennsylvania tion from involved not ment, both, “brings anyone or who into .product (steel) different but a different as- States, subject the any place United or pect of interstate proof commerce than thereof, jurisdiction knowingly or uses importation Pennsylvania. of sand into any express company other car- or common Here the trip charged in the indictment is rier, carriage foreign in interstate or clearly trip the same proved that at trial. (a) obscene, lewd, any lascivi- commerce — The sole alleged variance here is whether ous, filthy motion-picture . film implied indictment trip started any- . The applies .” statute also in New Jersey when in fact it started else- one ex- “knowingly who takes from such where and through continued New Jersey press company or other common carrier to Buffalo. proof Unlike Stirone the thing carriage matter or of which is product not transported from herein made unlawful .” See Jersey Buffalo to New or was not in fact U.S.C. § film at all. addition,

In Judge apparently this court Oakes already has concedes adopt ed the portion by Judge distinction made latter statute not of the does Leventhal States, in Jackson v. require knowledge by recipient of the U.S.App. D.C. cert. film common removed carrier denied, 385 U.S. actually transported it had inter- L.Ed.2d been (1966): prosecution commerce, Stirone the state see con- “[i]n footnote relying at trial on a complex of curring facts opinion, dis- since Oakes does Grey- object Defendants did Government Exhibit into evidence of admission hound bus schedule. aspect “public commercial environ- feel that New can avail itself of Buffalo Congress protecting. is The argument.3 why But it is unclear an ment” which Greyhound schedule which was admit- knowledge additional element must be bus well proved against compared into at trial demonstrates shipper ted evidence recipient. how the common carrier is with Such an internal inconsisten- involved foreign interstate commerce even if cy in the elements of the offense should not purely lightly Congress. portion trip one intrastate.5 attributed to purpose prevent Congress requires is “to defendant the statute knowingly trans- the channels interstate commerce from use a common carrier to port knowing That use being used to disseminate” obscene materi obscene material. Alpers, al. United 338 U.S. of a carrier establishes that common (1950). willing pollute public 70 S.Ct. 94 L.Ed. 492 defendant Since obscenity. Congress “has a interest commercial legitimate pro environment tecting public requirement environment The there be commercial additional preventing “carriage foreign such material from in interstate or com- [obscene] commerce,” entering jurisdic- simply the stream of the Con merce” establishes federal permits Congress comprehensive purpose be- stitution undertake tion. Given the “comprehensive regulation power of inter hind 18 1462 and the federal U.S.C. broad transportation Congress pursuant state of obscene material.” to the Commerce Orito, 139, Clause, Orito, supra, United see See States 26.74, 143-44, 93 S.Ct. 37 L.Ed.2d 513 413 U.S. at it would (1973). exactly Congress improper That is what has for this court to create knowledge requirement done in 18 in order U.S.C. 1462. additional to cut the reach of the statute. back on is to Congress It reasonable for view the its require The statute not on face does common carrier important as the entrance knowledge the common carrier will into the stream of interstate commerce. A lines, actually state and there move across Greyhound company carrier such as bus inferring such policy support is no reason to obviously with integrally is connected inter- requirement. a commerce; Greyhound state even if a bus decision, lines, majority’s not cross it almost In view no does state invari- ably highways by on a in pur- purpose travels interstate would be served discussion posefully with buses dissent other issues raised connects other which this important The is an appellants. do.4 common carrier (No. 3300) Appellants only trips proceed

3. were scheduled on well focus on Levene and to Aquarius Canada, raising argument; London, in New Buffa- to after a Toronto or some relegated Buffalo, pre- lo is to footnote. one brief which confirms dominately foreign and nature of the interstate argued It could be the obscene material commerce involved. all, long need not cross state lines at as the (in opin- 1 to his Oakes refers Footnote common carrier uses channels of interstate ion) January, routes shown other highways. commerce such as interstate ever, How- publication “Russell’s of a entitled edition beyond since the a found reasonable Guide,” which doubt, Official National Motor Coach following the instructions the trial evidence, court, referred in the trial not in is not fact common carrier in crossed record, York, Jersey court. and not been furnished to the the state line has from New New 31 to that issue is not it is in before this court. The reference to Footnote appellant’s brief. According only Greyhound bus timeta- evidence, guide is not in Since the Russell’s evidence, Greyhound ble Timetable No. available, may ac- and not has been made January, were in Government Exhibit there curately Greyhound bus reflect the actual daily trips 10 bus scheduled from New Buf- New York and schedule in effect between York, NY, Buffalo, (Nos. NY 26, 1973,1 unwilling January am on this falo on 3300, 1505, 351, 333), all but appeal place any it. reliance (No. Paramus, 3300) stopped one of which at Moreover, Jersey. New all but one of the 10 APPENDIX A hands and knees and him behind her. The scene then shifts back to MILLER mastur- Special Notes of Agents Allan M. Davison bating the black woman and back to DOUG and John F. Summarizing Lewis Con- engaging in intercourse with the woman. tents of Film “Belinda” as Viewed ejaculating The scene then shows DOUG Them on Jan. the stomach of the woman. The final scene color, “The began sound film approxi- at rubbing this series shows MILLER and mately 12:10 PM and approxi- ended at masturbating the black woman with his fin- mately 1:28 PM. begin- The credit at the ger. The next scene shows BELINDA de- ning of the film indicated it produced looking faced in a bedroom in a mirror Aquarius Inc., Releasing, and the dialogue while is carried on the soundtrack. begins film with group people, includ- ing person garb, dressed in clerical look- “The next scene shows MILLER and the ing at what is corpse assumed to be a in the together black woman in bed time identification room of a hospital. The next gets MILLER out of bed gets and an auto- scene shows ‘detective’ interviewing an type handgun matic and tells the woman individual in a tavern requests coop- his money that this is how he has coming in as eration in the investigation. person The he gun waves the in front of her. While garb clerical arrives with the others from woman, MILLER talks to the she caresses the hospital and is identified as Father penis his with her hand. The next scene (phonetic). KEENE person being in- talking shows DOUG in the bedroom terviewed begins detective to tell the BELINDA urging go her not to story about his knowledge of the deceased. MILLER. The scene shifts to picture of an individu- “The next scene shows MILLER in bed al MILLER, identified as who dragging with the black woman after which time he shoving BELINDA across a snow cov- gets bed, door, knocks, goes out of ered hill icy area. MILLER throws her and asks for WILLIAM. He then enters down and rubs his hands over her clothing room, apparently which is a bathroom and boyfriend, DOUG, BELINDA’S who has as there is a female sitting on the toilet been watching, jumps MILLER and stool when he ap- enters the room. This begin fight. The scene then shifts to a pears to be the same female who earlier had room where DOUG and BELINDA are kiss- pictured been with DOUG. The female ing while on a couch. stool, then while continuing to sit on the “The next scene shows DOUG with a performs fellatio on MILLER who is stand- woman who is enticing him in what is an ing in front of her. The black woman is infra-red type scene with all red lighting. bed, pictured then groaning rubbing and performs woman fellatio on DOUG. scene, herself. The angle from an below The scene then shifts to a room where a MILLER, girl looking up and the from the black female is performing fеllatio on MIL- floor, rubbing shows them each other and LER who is a white male. The next scene thereafter engaging in intercourse. The shows conversation among participants scene then shifts back to the bedroom back at the tavern. The group next where the black woman is self-masturbat- scenes alternate between the black woman ing. MILLER and the white female come performing fellatio on MILLER and the into engages the bedroom where MILLER other woman performing fellatio on DOUG. in intercourse with the white woman while “Following this, the scene shows DOUG black kissing woman is the white wom- kissing the breasts of the woman he is with an. The black woman then kisses the but- and thereafter engaging in intercourse with. tocks engaged of MILLER while he is her. The scene then shifts to MILLER intercourse with the white female. masturbating the black woman with his fin- ger and then back to DOUG engaging in “The next scene BE- shows DOUG and intercourse with the woman with her on her conversing LINDA in a bathroom. story contin-

tive to leave and decides ues. a “The room where scene shifts back infra-red again “The scene is an next MILLER and black woman and white BELINDA, WIL- type which shows scene talking. woman are in MILLER is bed MILLER dancing and MILLER male, LIAM and holding gun a white and second she is breasts while WILLIAM, caressing BELINDA’S identified as enters the room undress proceeds to MILLER and sit talk. still clothed. all four on the bed and An her and caress thereafter kiss argument then between MILLER her and ensues and WILLIAM and thereafter between breasts.

MILLER and the white female. The scene tav- back to “The next scene reverts then a shifts to tavern where further dia- conver- enters the ‘psychiatrist’ ern a where place logue partici- then takes between the group the entire sation and thereafter pants there. tavern. leaves the story “The continues with BELINDA agаin infra-red “The scene is next meeting edge MILLER ‘on the of town’ sitting and type which shows BELINDA where enters a house with him and she It then corset. standing full-length in a gets argument with the MILLER into an bedroom, removing entering shows her a and black woman where he shoves her tells corset, getting and into bed nylons, her transpiring, her While this to leave. is They be- laying who with nude. DOUG goes to BELIN- WILLIAM the couch where each other at gin to kiss and caress her puts leg. DA seated and his hand on removes kisses breasts and time DOUG her away then MILLER shoves him sits cunnilingus panties. performs He her then begins down on the couch where he to rub her assume a simulated and thereafter legs. BELINDA’S breasts and She resists position. intercourse time, him and at same black woman marquis “The next scene shows theater begins point, to caress WILLIAM. At this it shows the title ‘Belinda’ on the other white woman comes down the at the tavern en- person being interviewed stairs and enters the room. MILLER and shows tering theater. The next scene get argument with WILLIAM into an his standing room with DOUG nude black woman and white woman and at- tied arms his head and outstretched over tempt get leave them to and thereafter rope running his ropes with between forcefully WILLIAM escorts black MILLER, WIL- hands. BELINDA woman and the white woman out the front begins LIAM enter the and MILLER room grabs door. MILLER then BELINDA and begins to DOUG. WILLIAM taunt tells she him give her will whatever he with her BELINDA on bed wrestle with responds, ‘Doug’s wants she resisting him. The movie concludes only one.’ with ‘Be- marquis of the theater scene continu- “The next scene shows discussion leaving the theater. people linda’ it and on ing at the tavern. crediting listed on final “Individuals infra-red again next scene is of an “The the star as TERRY LEVENE and included and the type which shows the black woman having been MELINDA FORREST.” rubbing white each oth- kissing woman woman er’s and thereafter white bodies breasts, performs

kisses the black woman’s her,

cunnilingus inserts and thereafter penis ‍‌‌‌​‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​‌​​​​​‌‌‍woman’s into black artificial with the

vaginal opening. The scene ends in a simu-

black woman and white woman

lated The scene then position. intercourse where the detec-

shifts back to the tavern

Case Details

Case Name: United States v. New Buffalo Amusement Corp., Aquarius Releasing, Inc., and Terry Levene

Court Name: Court of Appeals for the Second Circuit

Date Published: May 22, 1979

Citation: 600 F.2d 368

Docket Number: 444, Docket 78-1317

Court Abbreviation: 2d Cir.