U.S. v. Linetsky

• Decision Date: 09 June 1976
• Docket Number: No. 75-3009,75-3009
• Citation: 533 F.2d 192
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruth A. LINETSKY, Lionel Perry and Linetsky Products, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 192

533 F.2d 192

UNITED STATES of America, Plaintiff-Appellee, v. Ruth A. LINETSKY, Lionel Perry and Linetsky Products, Inc. Defendants-Appellants.

No. 75-3009.

United States Court of Appeals, Fifth Circuit.

June 9, 1976.

Edwin M. Rosendahl, Beverly Hills, Cal., Meredith J. Cohen, Orlando, Fla., for defendants-appellants.

John L. Briggs, U.S. Atty., Mark L. Horwitz, Asst. U.S. Atty., Orlando, Fla., Robert Trout, Harold Damelin, B. Franklin Taylor, Jr., Act. Chief, Dept. of Justice, Gov. Reg. Sec., Crim. Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, GODBOLD and GEE, Circuit Judges.

GODBOLD, Circuit Judge:

A jury in the Middle District of Florida found three California residents, Ruth A. Linetsky, Lionel Perry, and Linetsky Products, Inc., guilty under 25 counts of an indictment charging use of the mails to send into the Middle District of Florida "obscene, lewd, lascivious, indecent, filthy, and vile" advertisements and films, in violation of Title 18, United States Code, §§ 1461 and 1462. We affirm on 23 counts, reverse on two counts.

The central issue before us concerns the effect in this case of an earlier ruling by the United States District Court for the Central District of California that certain of the materials here involved were as a matter of law not obscene, and of a subsequent decision by the Ninth Circuit in which it declined to issue a writ of mandamus directing that the judgment of the Central District of California be vacated.

The Florida indictment was returned July 18, 1974. It charged 18 separate mailings spanning a period from September 1970 through May 1973. All mailings were postmarked with the same name and an address located in the Central District of California. Sixteen Florida citizens received unsolicited advertising materials depicting explicit sexual conduct. A California postal inspector investigating the mailer used a "test name" and "test address" in Florida to purchase similar advertisements and two 8mm movie films. Three counts of the indictment alleged mailings of identical advertising brochures for "Sex in Marriage, Vols. I and II." Underlying seven other counts were identical advertising brochures for "Sex in Marriage, Vols. III and IV." These particular advertisements were sent to residents in Florida from September 1970 through January 1971.

In August 1971 Judge Irving Hill of the Central District of California considered multi-count indictments dated December 22, 1970, charging these appellants, among others, with violations of the same postal obscenity statute. To minimize discovery the parties in that case stipulated the underpinnings of the indictments. Among the numerous materials included were brochures promoting four-volume "Sex in Marriage" texts identical to those involved in ten counts of the Florida indictment. Despite the government's opposition, Judge Hill held hearings on defendants' pretrial motions to dismiss the indictments, and he admitted into evidence the stipulated materials together with certain magazines and films previously adjudicated in unrelated prosecutions to be constitutionally protected. In an attempt to protect its interests in the prosecution the government offered three advertisements from the case of Miller v. U. S., 431 F.2d 655 (CA9, 1970). On August 12 Judge Hill found that the objectionable materials were as a matter of law not obscene and granted the motion to dismiss the indictments. U. S. v. Ruth Linetsky, et al., No. 7145-(IH)-CD (C.D.Cal.1971). The government unsuccessfully petitioned the Ninth Circuit for a writ of mandamus directing Judge Hill to vacate that order. U. S. v. Hill, 473 F.2d 759 (CA9, 1972).

Trial under the Florida indictment commenced May 7, 1975. At the government's request one of the counts was dismissed and the remaining 25 submitted to the jury, which returned a guilty verdict on each count. Appellants Linetsky and Perry received suspended imprisonment terms. Linetsky was placed on a three-year supervised probation and fined $5,000 on each count, a total of $125,000; if she paid the fines as to counts one through three ($15,000 total) during the first two years of probation, the fine as to the remaining counts would be suspended. The court imposed on Perry two years of probationary supervision. The costs of the prosecution were assessed against Linetsky Products, Inc.

I. Double jeopardy and collateral estoppel

Appellants' primary contention is that the Fifth Amendment's double jeopardy clause ¹ and the collateral estoppel rule therein embodied ² prohibited their indictment, prosecution, and conviction on ten specified counts of the Florida indictment which were grounded on interstate mailings of advertising materials previously adjudged in the California case to be not obscene.

In Hill, the Ninth Circuit framed two issues, the latter determinative of the former: ³ 1) Did the government have a right of appeal to either the circuit or the Supreme Court? 2) Did the judge's action place the defendants in jeopardy and, if so, should the writ issue? Holding that jeopardy had attached, the court explained . . . defendants had been arraigned on valid indictments and had pled. The court then "heard" evidence going to the general issue whether the matter mailed was "obscene," a necessary element of the offense. Having considered the evidence, the court ruled, "as a matter of law," that the matter was not obscene. The court did not hold that the indictments were defective. On their faces, they were valid. What the court held, in substance, was that the defendants before it were not guilty. Surely, a court is "hearing" the evidence just as much when it receives written evidence as when it hears oral testimony of a witness.

473 F.2d at 761.

While the Ninth Circuit opinion characterized its rationale as consistent with the general rule on attachment of jeopardy "where a case is tried to a court without a jury," it also acknowledged that "the district judge did not think that he was holding a trial; he believed that jeopardy had not attached." Id. at 762. The controlling factor, in the appellate court's view, was that the judge had rendered a decision for the defendants as a matter of substantive law:

. . . the court received evidence going to the general issue, and it rendered a decision which was, in substance though not in form, a finding that the defendants were not guilty as a matter of law . . . guilt is precisely the issue that the court decided; it held that the material received in evidence was not obscene, and dismissed the cases. In substance, though not in form, that was an acquittal.

Id. at 763. Having determined the jeopardy issue adversely to the government, the court declined to issue the discretionary writ of mandamus, explaining that "to issue the writ would accomplish nothing. Having set aside his order, the district judge would have to dismiss again on the ground of double jeopardy." Id.

Our next inquiry concerns the effect which the District Court for the Middle District of Florida was required to give to the two decisions, district and circuit, arising from the California indictments. The government contends that the Ninth Circuit's decision in Hill conflicts with the Supreme Court's holding in Serfass v. U. S., 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), that even where disposition of a motion to dismiss an indictment is the "functional equivalent of an acquittal on the merits," double jeopardy has no application until a defendant is "put to trial before the trier of facts, whether the trier be a jury or a judge." Appellants reply by emphasizing the Supreme Court's failure to overrule or disapprove Hill in its reference to that case at n. 6, id. 420 U.S. at 382-383, 95 S.Ct. at 1060, 43 L.Ed.2d at 271. Even if we accept the Ninth Circuit's view that jeopardy attached in the California proceedings, we agree with the government that the traditional notions of double jeopardy have no application to the instant case because appellants have not been indicted twice "for the same offense." Appellants insist that mailings of identical materials to different addresses do not represent different offenses under the charging statute, because the "acts condemned by § 1461 are complete when the allegedly offending material is deposited in the mails." To support a claim of double jeopardy, however, it must be shown that the two offenses charged are in law and in fact the same offense. Dryden v. U. S., 403 F.2d 1008 (CA5, 1968), U. S. v. Wayman, 510 F.2d 1020, 1029 (CA5, 1975). See Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). While the counts at issue in the Florida and California indictments are rooted in the same statutory provisions, charge the same substantive violation, and involve mailings of the same allegedly obscene material, factual identity is lacking with respect to the overt acts. The similar counts in the two indictments involve not only different addresses but also mailings which are temporally and geographically distinct.

Next we look at collateral estoppel. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court announced that the federal rule of collateral estoppel is embodied in the Fifth Amendment's guaranty against double jeopardy. Justice Stewart wrote:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Id. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.

There being no disagreement regarding identity of parties, we focus on whether the California proceedings before Judge Hill in 1971 culminated in a valid and final judgment on an...