(dissenting):
I dissent. The record indicates that the delay in bringing the defendants to trial was attributable largely to the dilatory tactics of their attorney in postponing trial, despite the Government’s readiness and the trial judge’s repeated efforts to get the case to trial. There was no timely assertion by defendants of their right to a speedy trial. No legally cognizable prejudice to the defendants has been shown. Thus the standards of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), have clearly not been met in this case.
The court’s decision works a serious injustice, rewarding the defendants for their attorney’s successful stalling maneuvers. Moreover, the majority has engaged in unjustifiable appellate fact-finding, based largely on assumptions rather than on evidence. In my view, at the very least the majority, before reversing on the basis of disputed facts and an incomplete record, should remand the case to the district court for findings regarding the reasons for the *384delay and the resulting prejudice, if any, to the defendants.
The majority lists at considerable length its concept of how many days during the long period from the filing of the indictment until trial should be labeled as “ex-cludable” and “non-excludable” under the Western District’s Rule 50(b) Plan and its Speedy Trial Act Plan which went into effect July 1, 1976. In my view this procedure serves no useful purpose and is misleading, since as the majority concedes there was no violation of the former Plan and the Speedy Trial Act prohibits dismissal for any pre-July 1, 1979, violation of the latter Plan. See United States v. Carini, 562 F.2d 144, 148 (2d Cir. 1977).
In enacting the Speedy Trial Act Congress recognized that a four-year phase-in period would be required before the sanction of dismissal for non-compliance might be imposed, see 18 U.S.C. § 3163(c), since it would take many district courts that much time to eliminate their criminal case backlogs and to obtain the additional personnel, facilities, and new systems needed to meet the permanent time limits which would go into effect July 1, 1979. Viewed realistically, the interim time limits have represented hopes rather than firm mandates. Cf. United States v. Amendola, 558 F.2d 1043, 1045 (2d Cir. 1977) (“minimal” violation of Connecticut Speedy Trial Plan does not warrant dismissal).
In my view, the excludability or non-ex-cludability of time under the terms of these prior Plans is largely irrelevant since their standards differ substantially from the four-factor test established by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for determining whether a defendant’s Sixth Amendment right to a speedy trial, as distinguished from statutory rights, has been violated. When the Barker v. Wingo standards are applied, it is clear beyond peradventure that the defendants’ constitutional right to a speedy trial was not violated. Although the time from indictment to trial was long, the record repeatedly demonstrates that if the defendants had really wanted an earlier trial they could have had one at least as early as June 1, 1976, when Chief Judge Curtin (to whom the case was assigned for all purposes) ordered that a jury be drawn, and probably earlier. The Government was ready for trial at least as early as August 11, 1975. Indeed, by written notice dated November 1, 1974 (App. 36) the Government advised defense counsel that the case would be called on November 11,1974 in Part I of the U.S. Courthouse in Buffalo for the purpose of “SETTING TRIAL DATE.” The docket shows that this hearing was adjourned to November 20, 1974, for a meeting with Judge Curtin but there is no record of what transpired at that meeting.
What were the reasons for the repeated adjournment of the trial date? The Appendix and docketed record, while obviously quite incomplete, furnish sufficient information to support a strong inference that defense counsel, rather than the Government or the court, 'was mainly responsible for the delay. Defendants never sought a trial; on the contrary, they repeatedly sought to avoid trial.
Following the filing of the indictment on May 2, 1973, Judge Curtin granted the defendants’ motion to defer all proceedings until the end of June, 1973, when certain cases pending before the United States Supreme Court, which could have affected the prosecution of the present case, would have been decided.1 In the latter part of 1973 the defendants then filed numerous pretrial motions, including motions to dismiss the indictment in a related case (Cr. 1973-118), supported by affidavits and briefs necessitating answering affidavits and briefs from the Government and oral argument on February 14, 1974, which culminated in the court’s denial of the motions on July 15, *3851974. There followed the Government’s effort in November, 1974, to get a trial date fixed. Additional motions apparently were filed in related cases, including motions to dismiss, which were denied by the court on June 10, 1975.
Immediately upon denial of the latter motions defense counsel Seymour S. Det-sky, whose offices were in New York City, by letter dated June 20, 1975 (App. 34) to Assistant U.S. Attorney Williams in Buffalo, initiated plea bargaining negotiations. However, when the U.S. Attorney by letter dated July 2, 1975 (App. 33) advised Detsky he was willing to discuss the matter, Detsky by letter dated July 15, 1975 (App. 32) sought delay because of his own engagement in a trial. The U.S. Attorney by letter dated July 28, 1975 (App. 35) offered to accept a guilty plea from defendants Loew’s Theatres, Inc., Arena and Levene to any one count of the indictment, adding “If I do not hear from you by August 11, 1975, I will move this matter for immediate trial.” As a result, on August 11, 1975, according to the docket sheet, Judge Curtin directed “that [the] case be placed on the trial calendar.”
Faced with trial, Detsky, according to his letters dated September 9, 1975 (App. 31) and September 26, 1975 (App. 30), reopened plea negotiations by having his client write a letter to Assistant U.S. Attorney Williams (App. 57), and by making an appointment to go to Buffalo to see Williams -about the matter. However, Detsky’s September 9th letter concedes that he then “telephoned [Williams’] office to cancel that appointment because I was then engaged in a continued trial which extended beyond the dates I had speculated.” In a letter dated September 30,1975, Williams replied he was willing to meet on October 2, October 10, or any time the following week (except October 13) but that “as previously indicated” he was “not of a mind to accept a corporate plea.” (App. 29).
The record does not reveal what happened as a result of the foregoing correspondence except that almost five months later Detsky, by letter of February 10, 1976 (App. 28), again sought an opportunity to discuss a plea that would dispose of the case. Once again, this time on February 24, 1976 (App. 26, 27), Williams replied that his position had not changed, that he was “not of a mind to accept a corporate plea from Aquarius Releasing, Inc.,” but that he would be happy to meet with Detsky.
Thus the picture during the period prior to June, 1976, is one of defendants who were not seeking or asking for a trial but, on the contrary, were trying to induce the Government to accept a plea only by the corporate defendants and, when the Government twice refused any such bargain, were asking to reopen plea negotiations, thus implying that some other disposition might be negotiated.
In short, the defendants’ objective was to avoid or delay trial by negotiating a corporate guilty plea. This was confirmed when, after defendants’ stalling tactics failed, Judge Curtin met with counsel on June 1, 1976, to begin selection of the jury in the case (App. 38). Thereupon
“Mr. Detsky moved for dismissal on the ground that the Government had not afforded his clients a speedy trial. Furthermore, he contended that he did not represent defendant Benjamin Abrams although the court records indicated the contrary. Later he reported to the court that he did represent Abrams but Abrams had left the country. The Government’s affidavit represents that the FBI investigation reveals that Mr. Abrams still lives in the Buffalo, New York area. It appears that the Government has been ready at all times necessary in this case . . Putting aside the fact that the court since the summer of 1975 has been trying criminal cases, at no time during that period did defense urge a motion similar to the present one. That motion was not filed until the date set for jury selection.” (App. 38-39, Mem. Opin. of Judge Curtin, 6/23/76) (emphasis supplied).
Judge Curtin, in his decision dated June 23, 1976, promptly denied the motion to dismiss, directing that if defendant Abrams *386was not represented by Detsky he should retain counsel and be ready for trial on July 20, 1976.
Instead of availing himself of the opportunity to have the defendants go to trial immediately, Mr. Detsky moved the court to reconsider its decision, contending in a June 28 letter to Judge Curtin that defendants had not moved to dismiss earlier on speedy trial grounds because they had been trying “to work out a plea for the corporations and dismissing as to the individuals” and adding “I assumed that I would receive word on the aforesaid proposals. Instead I received a statement indicating readiness for trial. I state this so that the Court would not believe that we sat idly by abiding our time hoping that the United States would forget we existed.” (App. 40).
The truth, of course, was that the U.S. Attorney had long since repeatedly stated in writing to Detsky that he would not agree to any such proposals, despite which Detsky had thereafter reopened negotiations. Not surprisingly, the court on August 4, 1976, denied defendants’ motion for reconsideration and set jury selection for August 10, 1976.
If there were any doubt about the defendants’ consistent purpose from the inception of the case of delaying trial, it was removed by their next move. On August 10, 1976, the day set for selection of the jury, defendants filed a notice of appeal from Judge Curtin’s interlocutory, nonap-pealable order denying their motion to dismiss the case for lack of a speedy trial. This patently frivolous move served the purpose of preventing the case from going to trial that day as scheduled.
As anyone with even the slightest knowledge of federal practice could have predicted, the appeal was dismissed by us on September 14, 1976, for lack of jurisdiction. It may reasonably be inferred from this record that the appeal was taken in bad faith as a maneuver designed to block a prompt trial, which it succeeded in doing. The docket shows that the pertinent papers were not returned by our court to the Western District of New York until September 29, 1976. Thereupon, it became necessary to appoint counsel for defendant Abrams, whom Det-sky again disclaimed as his client after having claimed Abrams as his client on other occasions and having appeared as his counsel of record. This “on-again, off-again” representation of Abrams afforded another defense mechanism for delay of trial.
Of course, a busy district court such as the Western District with only three judges can hardly be expected to drop everything upon remand of a criminal case by the Court of Appeals and bring that case immediately to trial. However, Judge Curtin acted promptly, scheduling the case for trial on December 6, 1976. Thereupon Mr. Det-sky, just as he had effectively done in June and August on the eve of trial, moved three days before trial for a postponement, this time because of the death in Ireland of the mother of one of the defendants. Trial was adjourned until January 18, 1977.
Faced with trial on January 18, Detsky by letter dated January 12, 1977, to Judge Curtin offered to have defendant Aquarius Releasing, Inc., and perhaps Loew’s Theatres, Inc., plead guilty if the case were dismissed as to the individual defendants and this time advised the court (as had been the case for almost 1/2 years, see U.S. Attorney’s letter of 7/28/75, App. 35) that the U.S. Attorney had refused to entertain the offer. Thereupon the court held a meeting on January 13, 1977, at which trial was adjourned to February 15, 1977, for reasons not appearing in the record. Thereafter the record proceeds in the same vein, with defense counsel, whenever the court was ready to try the case, successfully obtaining adjournments, either because Mr. Detsky was actively pursuing plea negotiations or was actively engaged in trial elsewhere (see, e. g., App. 77), or because he had filed new motions, such as a motion for change of venue, or the like.
With the aid of hindsight it is apparent that the trial court was altogether too liberal in permitting itself to be lulled by the defendants’ extraordinarily successful delaying tactics into believing that postponements were reasonable and might lead to a *387disposition of the case without trial. Part of their success was undoubtedly attributable to the court’s lack of sufficient judicial personnel and its Herculean efforts to dispose of a huge backlog before July 1, 1979, the date when sanctions under the Speedy Trial Act go into effect. For present purposes, however, the important thing is that the defendants should not be rewarded for their own manipulation. To do so permits distortion, debasement and abuse of the right to a speedy trial under the Sixth Amendment, which was never intended to protect those who do everything within their power to delay or defeat the holding of a trial as long as possible. As the Supreme Court stated in Barker v. Wingo, “barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial.” 407 U.S. at 536, 92 S.Ct. at 2195. There are no such “extraordinary circumstances” in this case.
Both the reasons for the delay between indictment and trial and the lack of a timely assertion of speedy trial rights should weigh heavily against the defendants here. I cannot agree with the majority’s conclusion that in determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated, time expended by the parties in plea negotiations should be weighed against the Government. Such negotiations are not a one-way street but a bilateral affair in which the defendant, not just the Government or the public, stands to benefit from any resulting compromise that is accepted by the court. A defendant’s counsel is not obligated to engage in plea bargaining. When he does so, it is because he believes that the process is in his client’s interest and that the prospect of benefit warrants the delay occasioned by the bargaining. Absent a showing of bad faith or an unjustified change of position on the Government’s part (as was the case in United States v. Carini, 562 F.2d 144, 149 (2d Cir. 1977)), there is no reason to charge time devoted to plea bargaining against the Government rather than the defendant. The defendant is not entitled to have it both ways — to negotiate what may turn out to be an advantageous disposition for him and, if no such disposition is reached, to claim a violation of his Sixth Amendment right to a speedy trial.
United States v. Carini, supra, relied on by the majority, is wholly inapposite. There the Government was directly responsible for the delay. In satisfaction of charges against Carini, the president of Carini Construction Co., the Government offered to accept a corporate guilty plea to a misdemeanor charging violation of 26 U.S.C. § 7512(b) by failing to deposit withholding taxes, provided he would demonstrate over a period of time his good faith by scrupulous compliance with the Internal Revenue Code’s withholding requirement. More than a year was then allowed to pass without any plea being entered. Then the offer was withdrawn by the Government for policy reasons. The delay was properly assessed against the Government because the offer, due to its condition precedent, proposed an automatic delay which the defendant could not avoid if he wished to participate. See also United States v. Roberts, 515 F.2d 642, 647 (2d Cir. 1975). No such postponement or delay was proposed by any of the offers to plead in the present case. Moreover, except for one flat Government offer involving no delay and having no conditions precedent, the offers here all appear to have been proposals by the defendants, not the Government.
Nor can I agree with the majority’s statement (p. 378 supra) that when the defendants “engaged in plea negotiations with the government to avoid the necessity of trial, . . it is not unreasonable to assume that they were ‘lulled into not pressing for trial’ during that period,” citing United States v. Carini, thus excusing defendants’ long delay in asserting their right to a speedy trial. The record here is exactly to the contrary. The plea negotiations here were initiated and reinstituted by the defendants, notwithstanding the Government’s flat refusal as early as September 30, 1975, to accept the proffered *388corporate pleas in satisfaction of the charges against the individuals. The inference is inescapable that the defendants were using this tactic as a delaying maneuver. If anyone was “lulled” it was the Government, not the defendants.
Similarly, United States v. Didier, 542 F.2d 1182 (2d Cir. 1976), relied on by the majority for the proposition that the period during which a speedy trial motion was sub judice should not be charged against the defendant, is clearly distinguishable. There the motions to dismiss on speedy trial grounds were not filed on the eve of trial for the obvious purpose of seeking delay, as was the case here, but months before the first retrial date.
I also disagree with the majority’s conclusion that the defendants have made any showing of prejudice as a result of the delay. Appellant Levene can hardly complain of “anxiety and concern” attributable to the long pendency of trial when the delay was largely of his own making and when he deliberately sought and obtained postponement of much earlier trial dates. More important the suggestion that the ability to present a defense may have been impaired by the delay strikes me as frivolous. If what appears in public media is any criterion, community attitudes toward explicit sex, assuming they have changed at all since 1973, have become more liberal and tolerant. In any event, it is unlikely that the view on that subject of actors and actresses who played parts in “Belinda” would carry any weight at all. The acid test would be the impressions created by a viewing of the film “Belinda” itself, summarized in Appendix A hereto, the notes of two FBI agents which were made as they viewed the film on January 31, 1973. Well aware that the film could be viewed by the court and jury, the two agents would have no motive other than to make an accurate record of what they saw. Appendix A demonstrates — as the jury’s verdict confirms— that the chances of such hard, explicit pornography being saved by testimony of an art director or story editor were nil. Finding substitute witnesses for the art director and story editor should not pose a serious problem. Moreover, as far as.the record is concerned they may have disappeared long before 1975, when the case could first have been brought to trial but for the defendants’ own delaying tactics.
For these reasons I believe the majority makes a grave mistake in reversing the convictions and dismissing the indictments on the ground that the defendants’ Sixth Amendment right to a speedy trial was violated.
Nor can I agree that either of the two grounds advanced by Judge Oakes warrants reversal. The slight variance between the indictment and the proof at trial was clearly immaterial. “[Cjonvictions are not now set aside except for variance resulting in substantial prejudice to the defendant.” United States v. Knuckles, 581 F.2d 305, 312 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978).
Defendants Levene and Aquarius Releasing, Inc. were charged with knowingly transporting on or about January 26, 1973, an obscene film entitled “Belinda” in “interstate commerce, by means of common carriers, to wit, State Film Delivery, Inc., and Greyhound Lines-East, Inc., from the State of New Jersey to the City of Buffalo, in the State and Western District of New York” in violation of 18 U.S.C. §§ 1462 & 2. The evidence at trial, viewed in the light most favorable to the Government, as it must be, established that those two defendants knowingly transported the film “Belinda” on or about January 26, 1973, using the common carriers State Film Delivery, Inc. and Greyhound Lines-East, Inc., from New York City through the State of New Jersey to Buffalo, in violation of 18 U.S.C. §§ 1462 & 2. New Buffalo Amusement Corp. was charged with knowingly causing to be taken from Greyhound Lines-East, Inc. in Buffalo the film “Belinda” on January 26, 1973, in violation of 18 U.S.C. §§ 1462 & 2. The evidence, again viewed most favorably to the Government, established those allegations.
In short, out of the many details contained in the two relevant counts of the *389indictment, the only alleged variance is that the indictment read “from the State of New Jersey to the City of Buffalo” rather than “through the State of New Jersey to the City of Buffalo.” The date, the film, the two carriers, the destination, the names of the defendants and the sections of Title 18 were all completely accurate.
For a variance to be material, it is necessary that the prosecution rely at trial upon evidence and legal theories not “fairly embraced in the charges made in the indictment.” United States v. Garguilo, 554 F.2d 59, 63 (2d Cir. 1977), quoting United States v. Silverman, 430 F.2d 106, 110 (2d Cir.), modified on other grounds, 439 F.2d 1198 (1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971), and Russell v. United States, 369 U.S. 749, 793, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (Harlan, J., dissenting). The evidence and theory at trial here were “fairly embraced in the charges” because the essence of the interstate aspect of the indictment was that a particular obscene film had moved on a particular day on a particular common carrier between New Jersey and Buffalo. The jury found, under proper instructions, that the film actually moved “from the State of New Jersey to the City of Buffalo.” Whether the film started in New Jersey or started elsewhere is not material as long as the Government proved passage from New Jersey to Buffalo occurred, with Buffalo as the destination point. The indictment itself does not literally allege that the film’s transportation began in New Jersey.
The variance in the present case is far less important than that in United States v. Knuckles, supra, concurred in by my esteemed brother Oakes. In that case, the indictment contained a substantive count charging distribution of heroin and possession of heroin with intent to distribute on or about a certain date. The trial court charged the jury that it could convict if it found all elements of the offense established beyond a reasonable doubt even if the jury found that the substance was cocaine rather than heroin. This court rejected a claim of material variance, noting that “the only variance alleged by the appellants is the exact nature of the substance involved, heroin or cocaine; the time, place, people, and object proved at trial are in all respects those alleged in . the indictment.” Id. at 311 (emphasis in original). Such a variance “cannot have prejudiced the ability of the defendants to make their defense to the charge that they violated 21 U.S.C. § 841.” Id., citing United States v. Garguilo, supra. Since the defendants were “sufficiently apprised of the charges laid against them” and there was no danger of a second prosecution for the same offense, id., the variance was not material and the conviction was affirmed even though presumably a “cocaine theory” was not presented to the grand jury.
In the present case, the variance is a fortiori immaterial. Whether the trip began in New Jersey and ended in Buffalo or began in New York City, went into New Jersey, and then continued from New Jersey to Buffalo does not affect the elements of the crime in the slightest. It certainly does not render the offense proved at trial a different crime from the one alleged in the indictment. Nor should it have affected defense counsel’s preparation for trial. As Judge Oakes concedes, the defendants had the Greyhound Lines bus bill showing that the transportation of the film initiated from the New York City bus terminal. Since the indictment, literally read, only alleged that the film had passed from New Jersey to Buffalo and did not allege that the trip started in New Jersey, defense counsel had ample time to investigate whether such interstate passage actually occurred. Indeed, when the issue of the point of origin of the film’s trip was first raised at trial, during the testimony of the second Government witness, defense counsel was well prepared. On cross-examination he asked the witness about a particular Greyhound bus route from New York City through Poughkeepsie to Albany to Buffalo without ever leaving New York State and he elicited the fact that routes were sometimes changed according to traffic conditions. There was no objection by defendants to the introduction of the testimony concerning the New Jersey *390pass-through.2 In short, this record fails to demonstrate prejudice or even surprise on the part of the defense that the interstate trip involved did not originate in New Jersey. The “several courses” suggested by Judge Oakes in hindsight were fully available to the defense through foresight as well.
Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), which Judge Oakes regards as controlling, is easily distinguished. In Stirone the indictment charged that the defendant illegally obstructed the movement of sand in interstate commerce into Pennsylvania. The Government introduced evidence at trial that there was also illegal interference by the defendant with the prospective movement of steel out of Pennsylvania, and the jury was permitted to convict if either interference was established beyond a reasonable doubt. The Supreme Court reversed, holding that there was a material variance.
Judge Oakes appears to argue that the material variance in Stirone was solely that of exportation as compared to importation. Even if that were true, the alleged variance here is far less relevant. Proof of exportation from Pennsylvania involved not only a different .product (steel) but a different aspect of interstate commerce than proof of importation of sand into Pennsylvania. Here the trip charged in the indictment is clearly the same trip as that proved at trial. The sole alleged variance here is whether the indictment implied that the trip started in New Jersey when in fact it started elsewhere and continued through New Jersey to Buffalo. Unlike Stirone the proof was not that the product was transported from Buffalo to New Jersey or was not in fact film at all.
In addition, this court has already adopted the distinction made by Judge Leventhal in Jackson v. United States, 123 U.S.App.D.C. 276, 279, 359 F.2d 260, 263, cert. denied, 385 U.S. 877, 87 S.Ct. 55, 17 L.Ed.2d 62 (1966): “[i]n Stirone the prosecution was relying at trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment.” See United States v. Knuckles, supra, 581 F.2d at 312. In Stirone, the indictment was concerned with the movement of sand, whereas the evidence at trial included the prospective movement of steel at a later point in time. This is obviously “a complex of facts distinctly different” from the indictment. In the present case, the only alleged variance involves one very minor detail— whether the trip started in New Jersey or started elsewhere and continued through New Jersey. The date, the film, the carriers, and the people involved were all the same. Stirone would be applicable if the Government had convicted the defendants on evidence of a later shipment of a different film, but that is obviously not this case.
Judge Oakes also suggests that 18 U.S.C. § 1462 requires proof that the defendants have knowingly used interstate commerce for the shipment of the film, as compared to proof that they knowingly used a common carrier which then in fact traveled in interstate commerce. I cannot agree.
The statute imposes a fine or imprisonment, or both, on anyone who “brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce — (a) any obscene, lewd, lascivious, or filthy . motion-picture film . .” The statute also applies to anyone who “knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful . . .” See 18 U.S.C. § 1462.
Judge Oakes apparently concedes that the latter portion of the statute does not require knowledge by the recipient of the film removed from the common carrier that it had actually been transported in interstate commerce, see footnote 3 of the concurring opinion, since Judge Oakes does not *391feel that New Buffalo can avail itself of this argument.3 But it is unclear why an additional knowledge element must be proved against the shipper as compared to the recipient. Such an internal inconsistency in the elements of the offense should not be lightly attributed to Congress.
The purpose of the statute is “to prevent the channels of interstate commerce from being used to disseminate” obscene material. United States v. Alpers, 338 U.S. 680, 683, 70 S.Ct. 75, 94 L.Ed. 492 (1950). Since Congress “has a legitimate interest in protecting the public commercial environment by preventing such [obscene] material from entering the stream of commerce,” the Constitution permits Congress to undertake “comprehensive federal regulation of interstate transportation of obscene material.” See United States v. Orito, 413 U.S. 139, 143, 93 S.Ct. 2674, 2678, 37 L.Ed.2d 513 (1973). That is exactly what Congress has done in 18 U.S.C. § 1462.
It is reasonable for Congress to view the common carrier as the important entrance into the stream of interstate commerce. A carrier such as the Greyhound bus company is obviously integrally connected with interstate commerce; even if a Greyhound bus does not cross state lines, it almost invariably travels on interstate highways or purposefully connects with other buses which do.4 The common carrier is an important aspect of the “public commercial environment” which Congress is protecting. The Greyhound bus schedule which was admitted into evidence at trial well demonstrates how involved the common carrier is with interstate and foreign commerce even if one portion of the trip is purely intrastate.5
Congress requires that the defendant knowingly use a common carrier to transport obscene material. That knowing use of a common carrier establishes that the defendant is willing to pollute the public commercial environment with obscenity. The additional requirement that there be “carriage in interstate or foreign commerce” simply establishes federal jurisdiction. Given the comprehensive purpose behind 18 U.S.C. § 1462 and the broad power of Congress pursuant to the Commerce Clause, see United States v. Orito, supra, 413 U.S. at 143-44, 93 S.Ct. 26.74, it would be improper for this court to create an additional knowledge requirement in order to cut back on the reach of the statute. The statute does not on its face require knowledge that the common carrier will actually move across state lines, and there is no policy reason to support inferring such a requirement.
In view of the majority’s decision, no purpose would be served by a discussion in this dissent of the other issues raised by the appellants.
*392APPENDIX A
Notes of Special Agents Allan M. Davison and John F. Lewis Summarizing Contents of Film “Belinda” as Viewed by Them on Jan. 31, 1973
“The color, sound film began at approximately 12:10 PM and ended at approximately 1:28 PM. The credit at the beginning of the film indicated it was produced by the Aquarius Releasing, Inc., and the film begins with a group of people, including a person dressed in clerical garb, looking at what is assumed to be a corpse in the identification room of a hospital. The next scene shows a ‘detective’ interviewing an individual in a tavern and requests his cooperation in the investigation. The person in clerical garb arrives with the others from the hospital and is identified as Father KEENE (phonetic). The person being interviewed by the detective begins to tell the story about his knowledge of the deceased. The scene shifts to a picture of an individual identified as MILLER, who is dragging and shoving BELINDA across a snow covered hill and icy area. MILLER throws her down and rubs his hands over her clothing and BELINDA’S boyfriend, DOUG, who has been watching, jumps MILLER and they begin to fight. The scene then shifts to a room where DOUG and BELINDA are kissing while on a couch.
“The next scene shows DOUG with a woman who is enticing him in what is an infra-red type scene with all red lighting. The woman performs fellatio on DOUG. The scene then shifts to a room where a black female is performing fellatio on MILLER who is a white male. The next scene shows conversation among the participants back at the tavern. The next group of scenes alternate between the black woman performing fellatio on MILLER and the other woman performing fellatio on DOUG.
“Following this, the scene shows DOUG kissing the breasts of the woman he is with and thereafter engaging in intercourse with. her. The scene then shifts to MILLER masturbating the black woman with his finger and then back to DOUG engaging in intercourse with the woman with her on her hands and knees and him behind her. The scene then shifts back to MILLER masturbating the black woman and back to DOUG engaging in intercourse with the woman. The scene then shows DOUG ejaculating on the stomach of the woman. The final scene in this series shows MILLER rubbing and masturbating the black woman with his finger. The next scene shows BELINDA defaced in a bedroom looking in a mirror while dialogue is carried on the soundtrack.
“The next scene shows MILLER and the black woman in bed together at which time MILLER gets out of bed and gets an automatic type handgun and tells the woman that this is how he has money coming in as he waves the gun in front of her. While MILLER talks to the woman, she caresses his penis with her hand. The next scene shows DOUG in the bedroom talking to BELINDA and urging her not to go with MILLER.
“The next scene shows MILLER in bed with the black woman after which time he gets out of bed, goes to the door, knocks, and asks for WILLIAM. He then enters the room, which apparently is a bathroom as there is a female sitting on the toilet stool when he enters the room. This appears to be the same female who earlier had been pictured with DOUG. The female then while continuing to sit on the stool, performs fellatio on MILLER who is standing in front of her. The black woman is then pictured in bed, groaning and rubbing herself. The scene, from an angle below MILLER, and the girl looking up from the floor, shows them rubbing each other and thereafter engaging in intercourse. The scene then shifts back to the bedroom where the black woman is self-masturbating. MILLER and the white female come into the bedroom where MILLER engages in intercourse with the white woman while the black woman is kissing the white woman. The black woman then kisses the buttocks of MILLER while he is engaged in intercourse with the white female.
“The next scene shows DOUG and BELINDA conversing in a bathroom.
*393“The scene shifts back to a room where MILLER and the black woman and white woman are in bed talking. MILLER is holding the gun and a second white male, identified as WILLIAM, enters the room and all four sit on the bed and talk. An argument then ensues between MILLER and WILLIAM and thereafter between MILLER and the white female. The scene then shifts to a tavern where further dialogue then takes place between the participants there.
“The story continues with BELINDA meeting MILLER ‘on the edge of town’ where she enters a house with him and MILLER gets into an argument with the black woman where he shoves her and tells her to leave. While this is transpiring, WILLIAM goes to the couch where BELINDA is seated and puts his hand on her leg. MILLER shoves him away and then sits down on the couch where he begins to rub BELINDA’S breasts and legs. She resists him and at the same time, the black woman begins to caress WILLIAM. At this point, the other white woman comes down the stairs and enters the room. MILLER and WILLIAM get into an argument with the black woman and white woman and attempt to get them to leave and thereafter WILLIAM forcefully escorts the black woman and the white woman out the front door. MILLER then grabs BELINDA and tells her she will give him whatever he wants to which she responds, ‘Doug’s the only one.’
“The next scene shows discussion continuing at the tavern.
“The next scene is again of an infra-red type which shows the black woman and the white woman kissing and rubbing each other’s bodies and thereafter the white woman kisses the black woman’s breasts, performs cunnilingus on her, and thereafter inserts an artificial penis into the black woman’s vaginal opening. The scene ends with the black woman and white woman in a simulated intercourse position. The scene then shifts back to the tavern where the detective decides to leave and the story continues.
“The next scene is again an infra-red type scene which shows BELINDA, WILLIAM and MILLER dancing and MILLER caressing BELINDA’S breasts while she is still clothed. MILLER proceeds to undress her and thereafter kiss and caress her breasts.
“The next scene reverts back to the tavern where a ‘psychiatrist’ enters the conversation and thereafter the entire group leaves the tavern.
“The next scene is again an infra-red type which shows BELINDA sitting and standing in a full-length corset. It then shows her entering a bedroom, removing her nylons, and corset, and getting into bed with DOUG who is laying nude. They begin to kiss and caress each other at which time DOUG kisses her breasts and removes her panties. He then performs cunnilingus on her and thereafter assume a simulated intercourse position.
“The next scene shows a theater marquis with a title ‘Belinda’ on it and shows the person being interviewed at the tavern entering the theater. The next scene shows DOUG standing nude in a room with his arms outstretched over his head and tied to ropes with a rope running between his hands. MILLER, BELINDA and WILLIAM enter the room and MILLER begins to taunt DOUG. WILLIAM begins to wrestle with BELINDA on a bed with her resisting him. The movie concludes with the scene of the theater marquis with ‘Belinda’ on it and people leaving the theater.
“Individuals listed on the final crediting included TERRY LEVENE and the star as having been MELINDA FORREST.”
. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), decided on June 21, 1973. Other obscenity cases decided by the Supreme Court that same day were Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. 12 200-Foot Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).
. Defendants did object to the admission into evidence of Government Exhibit 10, the Greyhound bus schedule.
. Appellants as well focus only on Levene and Aquarius in raising this argument; New Buffalo is relegated to one footnote.
. It could be argued that the obscene material need not cross state lines at all, as long as the common carrier uses channels of interstate commerce such as interstate highways. However, since the jury found beyond a reasonable doubt, following the instructions of the trial court, that the common carrier in fact crossed the state line from New Jersey to New York, that issue is not before this court.
. According to the only Greyhound bus timetable in evidence, Greyhound Timetable No. 70, Government Exhibit 10, there were in January, 1973, 10 bus trips scheduled daily from New York, NY, to Buffalo, NY (Nos. 339, 3201, 331, 3300, 1505, 351, 3211, 1509, 1511, 333), all but one of which (No. 3300) stopped at Paramus, New Jersey. Moreover, all but one of the 10 trips (No. 3300) were scheduled to proceed on to Toronto or London, Canada, some after a brief delay in Buffalo, which confirms the predominately interstate and foreign nature of the commerce involved.
Judge Oakes refers (in Footnote 1 to his opinion) to other routes shown in the January, 1973, edition of a publication entitled “Russell’s Official National Motor Coach Guide,” which is not in evidence, is not referred to in the trial record, and has not been furnished to the court. The only reference to it is in Footnote 31 to appellant’s brief.
Since the Russell’s guide is not in evidence, has not been made available, and may not accurately reflect the actual Greyhound bus schedule in effect between New York and Buffalo on January 26, 1973,1 am unwilling on this appeal to place any reliance upon it.