U.S. v. Jenkins

Decision Date20 February 1995
Docket NumberNo. 93-2056,93-2056
Citation46 F.3d 447
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Mary Jane JENKINS, Evan Peter Pigman, Jo Ann Rochelli, David Carl Stubbs, Rickie Herbert Ranney, and Larry Wayne Malady, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Gerald Goldstein, San Antonio, TX, Frierson M. Graves, Memphis, TN, for Jenkins.

Michael F. Pleasants, Memphis, TN, Leonard J. Frankel, St. Louis, MO, for Pigman.

Edward A. Mallett, Gerald H. Goldstein, Houston, TX, for Rochelli.

Berkman, Gordon, Murray, J. Michael Murray, Cleveland, OH, for Stubbs.

Jerry B. Kraig, Cleveland, OH, for Ranney.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, KING and DUHE, Circuit Judges.

DUHE, Circuit Judge:

The government appeals from the grant of Appellees' 1 motions to suppress evidence. For the reasons below, we find that the district court's holding was based on a misapprehension of the applicable law, and therefore we reverse, render and remand.

I. PROCEDURAL BACKGROUND

In April 1991, a grand jury for the Southern District of Texas indicted Appellees for racketeering and interstate shipment of obscene materials via common carrier. Appellees moved to suppress evidence obtained from five searches of bookstores and businesses owned or controlled by Jenkins in Alabama, Louisiana, Missouri, Tennessee and Texas, and from the search of a vehicle owned by appellee Stubbs. These searches were made pursuant to warrants issued on probable cause, based on evidence gathered without a warrant by virtue of a cooperating witness. As will be discussed more fully below, the propriety of the search warrants is not directly at issue. Rather this appeal addresses Appellees' contention that the preliminary warrantless search--involving allegedly obscene videotapes made available by the cooperating witness--was constitutionally infirm. 2

Following an evidentiary hearing, the district court suppressed all evidence seized as a result of the warrantless, preliminary search. The government moved for reconsideration raising for the first time the issue of the Appellees' standing to challenge the preliminary search. The district court denied the motion, and the government filed the instant appeal.

II. FACTUAL BACKGROUND
A. The Appellees

Mary Jane Jenkins, a resident of St. Louis, owned and operated Phoenix and Associates Management, Ltd., a Missouri corporation formed to manage 17 "adult" bookstores. Evan Peter Pigman, also a resident of St. Louis, worked as general manager and president of Phoenix and Associates. Each of Jenkins' 17 adult bookstores included a "video arcade," consisting of "peep machines," that exhibited pornographic videotapes. Customers viewed the videotapes by inserting coins or tokens into the machines. White Fabricating, located in Cleveland, Ohio, owned and operated the peep machines and supplied videotapes for exhibition in the machines.

Each week, White Fabricating's regional representatives would receive videotapes shipped by White Fabricating via United Parcel Service (UPS). The White representatives would then proceed to Jenkins' stores, insert new videotapes into the machines, retrieve the prior weeks' videotapes and remove money from the machines. David Stubbs, a resident of Houston, supervised the installation of videotapes in adult bookstores throughout the south for White.

B. The Searches

The search warrants were executed as part of a series of multi-city searches of adult bookstores purportedly exhibiting obscene videotapes. Much of the evidence adduced at the suppression hearing was identical to evidence presented to the United States Court of Appeals for the Sixth Circuit. See White Fabricating Co. v. United States, 903 F.2d 404 (6th Cir.1990).

As described in White Fabricating, Cleveland FBI agent Jim Larkin drafted a model "national affidavit" detailing shipments of allegedly obscene videotapes from a source in Cleveland to various adult bookstores located throughout the United States. Agent Larkin used this affidavit to obtain warrants authorizing the search of Diversified Industries and White Fabricating, the alleged source of the obscene videotapes. FBI agents used portions of this affidavit to obtain warrants authorizing the search of adult bookstores that had allegedly received copies of the obscene videotapes for their peep machines.

The affidavit asserted that the plaintiffs were involved in a pattern of racketeering activity, interstate transportation of obscene material and transportation of obscene material for sale and distribution, conspiracy to defraud the United States, money laundering, and aiding and abetting in these criminal activities. The allegations contained in the affidavit were based on a six-month investigation by the FBI which involved the plaintiffs and two other companies. The investigation disclosed a pattern of weekly shipments of allegedly obscene video tapes from Cleveland, Ohio to adult book stores and peep shows throughout the United States.

The investigation revealed that DI [Diversified Industries] manufactured video peep show booths which were subsequently installed in adult book stores. DI also supervised regional companies that oversaw peep show operations in their various geographic areas. These service companies would receive the video tapes, place them in a video machine in a peep show booth, occasionally service the machine, keep records of profits generated from the machines, and send back to DI a certain percentage of the proceeds generated. The investigation also revealed a meticulous method of accounting for profits which included the use of locked cash boxes which required keys to open, profit and balance sheet records, extensive use of cashier's checks, and the disbursal of deposits of cash into a number of banks to avoid the $10,000 minimum reporting requirement imposed on these banks.

White was allegedly one of DI's service companies. The investigation indicated that White was substantially engaged in the duplication, installation, and distribution of the allegedly obscene video tapes which were placed in the various peep show booths. White would first receive approximately fifteen "master" video tapes, which White would duplicate, using some one hundred video cassette recorders. White's employees would then package the video tapes for shipment to adult book stores scattered throughout the country.

Government agents, for five weeks, monitored the shipment of video tapes from White to a "cooperating witness," an employee or associate of one of the plaintiffs. His particular job allegedly involved receiving the shipment of video tapes from White in Cleveland, and then installing the various duplicated video tapes in adult book stores in a particular city. On approximately June 1, 1988, this cooperating individual allegedly began to allow law enforcement officials to examine the video tape cassettes and to make copies of them for subsequent viewing. The government agents viewed seventy-five different tapes, drafting detailed written descriptions of the contents of fifty video tapes.

Based on this information, along with other information allegedly supplied by cooperating witnesses, Agent Larkin concluded that probable cause existed to support the search warrants authorizing the search of the plaintiffs' premises. Written descriptions of the content of the allegedly obscene fifty video tapes were furnished to the magistrate, along with the extensive affidavit. Based on the affidavit, the fifty written descriptions, and after personally viewing four of the video tapes, the magistrate issued the warrants.

Id. at 406-07. At issue in the instant appeal is whether the Appellees' Fourth Amendment rights were violated when the government obtained access to the videotapes via the cooperating witness without a specific warrant.

During the initial stages of the investigation, FBI agents obtained permission from UPS to examine certain parcels shipped from White Fabricating to various locations. From the exterior of the parcels, the agents could ascertain their destination, but were not able to learn any information about their contents. FBI agents visited the establishments designated for receipt of the parcels, and viewed the videotapes in the same manner as an ordinary customer, i.e., by inserting coins or tokens in the peep machines.

This process, however, proved expensive and unworkable because the FBI was unable to link the allegedly obscene videotapes viewed to the UPS parcels, and was therefore unable to track their shipment in interstate commerce. The agents decided to recruit a cooperating witness who could permit access to the contents of the UPS shipments. After some investigation, the agents determined to approach Mark Boyd (Boyd), the sole White Fabricating employee in Memphis, Tennessee.

Two FBI agents approached Boyd and informed him that he had been identified as a possible prosecution target for interstate transportation of obscene materials. The agents asked Boyd if he would cooperate in their investigation, and he agreed. The district court did not find that the FBI promised Boyd immunity or any other incentive for his cooperation. The district court specifically found, however, that the FBI failed to apprise Boyd of his right to refuse to cooperate.

Essentially, Boyd agreed that he would continue to follow his normal routine. As usual, he picked up the White Fabricating shipment at the Paris Theater in Memphis. However, after retrieving each parcel, he met with the FBI and the local police. Boyd opened the parcels in the presence of the agents, who photographed and inventoried their contents. As set forth in the district court's memorandum opinion,

Generally, Boyd would receive four sets, or "libraries", of 15 video-tapes on each delivery. He would provide one library of 15...

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