United States v. Luros

• Decision Date: 04 November 1966
• Docket Number: Crim. No. 65-Cr-3007.
• Parties: UNITED STATES of America, Plaintiff, v. Milton LUROS et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

260 F. Supp. 697

UNITED STATES of America, Plaintiff, v. Milton LUROS et al., Defendants.

Crim. No. 65-Cr-3007.

United States District Court N. D. Iowa, W. D.

November 4, 1966.

COPYRIGHT MATERIAL OMITTED

Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, Theodore Kleinman, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff.

Stanley Fleishman, Hollywood, Cal., Percy Foreman, Houston, Tex., for defendants.

MEMORANDUM AND ORDER.

HANSON, District Judge.

This is a ruling on three separate motions filed by the defendants in this case.

On March 24, 1965, a grand jury for this District returned a 25-count indictment against the defendants. Count 1 charged a violation of Title 18, United States Code, Section 371, in that all of the defendants conspired together to violate the Federal obscenity statutes. Counts 2 through 8, 10 through 12, and 19 through 25 charged that certain defendants used the mails for the carriage and delivery of obscene books and magazines in violation of Section 1461 of Title 18. Additional violations of Section 1461 were charged in Counts 9 and 15, in that certain defendants used the mails for the carriage and delivery of advertisements giving information where, how, from whom, and by what means obscene books and magazines might be obtained. Counts 13, 14, and 16 through 18 charged that certain defendants used a common carrier for carriage of obscene magazines in interstate commerce in violation of Section 1462 of Title 18. Each substantive count alleged that the obscene matter was mailed or shipped from North Hollywood, California, to a point in this District. The bulk of the materials named in the indictment consisted of nudist magazines, so-called "girlie" magazines, and paperback novels primarily depicting the activities of lesbians.

Prior to the commencement of trial, the defendants moved to dismiss the indictment, to transfer venue, for suppression of certain evidence subpoenaed by the grand jury, and for a bill of particulars. On June 29, 1965, this Court denied defendants' motions. See United States v. Luros, 243 F.Supp. 160, N.D. Iowa, 1965.

The trial of this cause commenced on October 18, 1965. The materials named in the indictment and introduced into evidence by the Government were read by the jurors in open court immediately prior to the conclusion of the Government's case. On December 17, 1965, after having called forty-one witnesses to testify directly and having introduced the testimony of eighteen others by stipulation, the Government rested. The defendants then moved to dismiss the indictment and for a judgment of acquittal. Oral arguments were heard and both sides submitted numerous authorities and exhibits from previously adjudicated obscenity cases for the Court's consideration. On January 4, 1966, this Court denied the defendants' motion. The following day the defendants rested without offering any evidence and renewed their motion for judgment of acquittal. At that juncture, all the evidence having been submitted, the Court dismissed Count 1, the conspiracy count, and Counts 9, 15, 16, 17, 18, and 19 and reserved further decision on the defendants' motion.

On January 11, 1966, the following nudist magazines and paperback novels were submitted to the jury for their consideration in connection with the remaining counts of the indictment:

"Teenage Nudist", Vol. 1, No. 1; "Nudist Photo Field Trip", No. 6; "Urban Nudist", Vol. 1, No. 8; "Urban Nudist", Vol. 1, No. 9; "Urban Nudist", Vol. 1, No. 11; "Sun Era", Vol. 1, No. 8; "Sun Era", Vol. 1, No. 10; "Sun Era", Vol. 2, No. 2; "Sun Era", Vol. 2, No. 4; "Nudist Colorama", No. 2; "Nudist Colorama", No. 3; "Popular Nudist", Vol. 1, No. 3; "Popular Nudist", Vol. 1, No. 4; "Nudist Week—Quarterly Notebook No. 2"; "Lesbian Sin Song"; "Two Women in Love"; "Pleasure House"; "Lesbian Alley"; "The Three Way Apartment"; and "The Affairs of Gloria". On January 14, 1966, the jury returned guilty verdicts on all counts before it. Defendants have now renewed their motion for judgment of acquittal on which this Court had previously reserved decision pursuant to the provisions of Rule 29(b), Federal Rules of Criminal Procedure. They have also filed an alternative motion for a new trial, Fed.R.Crim.P. 33, and a motion in arrest of judgment, Fed.R.Crim.P. 34.

Rule 29(a), Federal Rules of Criminal Procedure, directs the Court "to order the entry of judgment of acquittal * * * if the evidence is insufficient to sustain a conviction * * *". In measuring the sufficiency of the evidence, this Court must view the evidence in the aspect most favorable to the prevailing party—in this instance, the Government. National Dairy Products Corp. v. United States, 350 F.2d 321, 8 Cir., 1965; Apel v. United States, 247 F.2d 277, 8 Cir., 1957; McKenna v. United States, 232 F.2d 431, 8 Cir., 1956. If, when viewed in this light, the evidence is legally capable of allowing a jury to become persuaded of guilt, then the motion for judgment of acquittal must be denied. National Dairy Products Corp. v. United States, supra; cf. Beatrice Foods Co. v. United States, 312 F.2d 29, 8 Cir., cert. denied, 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199, 1963.

In support of their motion for judgment of acquittal, the defendants advanced three arguments. First, they assert that the evidence presented at the trial was insufficient to establish that the defendants knowingly caused the transportations and mailings for which they have been convicted. Second, they maintain that the evidence offered by the Government to prove scienter was similarly insufficient. Finally, the defendants urge that the materials found to be obscene by the jury are constitutionally protected and that, in any event, the Government did not meet its burden of proving that the materials were obscene.

All of the questions raised have been heretofore considered by the court. Rulings on these questions have been made in the record and by the prior written rulings. Therefore, any extensive discussion of such issues will not be repeated here.

The court has carefully and thoroughly considered the decisions on the issues involved in this case. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639; A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1; Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 969, 16 L.Ed.2d 31; Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56. This court has also considered the various per curiam decisions by the Supreme Court together with the decisions of the Circuit Courts, the Federal District Courts, and the State Courts.

The court concludes that as to the statutes involved in this case, Sections 1461 and 1462 of Title 18, of course include some issues other than the obscenity issue, i. e., the scienter and the mailings. As to the defendants Milton Luros, Sun Era, Inc., American Art Agency, Inc., Parliament News, Inc. and London Press, Inc., the evidence is in all respects substantial and supports the verdicts and all the motions of these defendants will be overruled in each of their separate subdivisions and in their entirety.

As to the other named defendants, the motion for judgment of acquittal will be sustained on all Counts in which they are named for lack of evidence to support the charges.

The Government was required to prove that each defendant knew the contents of the material and the requisite knowledge of the mailing as set forth in and explained in the instructions. As to the defendants Beatrice B. Luros, Stanley E. Sohler, Melvin Friedman, Elmer A. Batters, Harold Straubing, Paul Wisner, individually and d/b/a Regent House, Sam Merwin, Jr., and Richard E. Geis, the Government failed to prove one or both of these two separate requirements of knowledge.

As to Milton Luros and the four corporations, the evidence was sufficient. The knowledge of those who worked for and under Milton Luros can be imputed to the corporations and to Milton Luros. See Fabian v. United States, 358 F.2d 187 (8th Cir.); Reistroffer v. United States, 258 F.2d 379 (8th Cir.). These cases show that this rule is not limited to proving a conspiracy. See also American Fur Co. v. United States, 2 Pet. 358, 27 U.S. 358, 364, 7 L.Ed. 450; United States v. Annunziato, 293 F.2d 373, 378 (10th Cir.).

Accordingly, it will be Ordered that judgment of conviction on the jury verdicts will be entered against Milton Luros, American Art Agency, Inc., Sun Era, Inc., Parliament News, Inc., and London Press, Inc. on all counts.

The defendants have challenged that the materials here are not obscene as a matter of law. The function of the court is set forth in United States v. West Coast News Company, 6 Cir., 357 F.2d 855, 857:

"Although it was the jury's function to make the final decision as to whether crimes were committed by the commerce in this book, we are put to an initial and independent judgment because of appellants' contention that, as a matter of law, the book is not obscene.

We are properly charged with such responsibility by Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), where the United States Supreme Court by footnote reference (p. 188, 84 S.Ct. p. 1678) finds relevant one author's observation that `This obligation—to reach an independent judgment * * * appears fully applicable to findings of obscenity by juries, trial courts, and administrative agencies. The Supreme Court is subject to that obligation, as is every court before which the constitutional issue is raised.'"

Also in Alexander v. United States, 271 F.2d 140 (8th Cir.) the court said: "The primary responsibility for determining the obscenity issue is upon the jury." The Roth standards as...