U.S. v. Drebin

• Decision Date: 21 July 1977
• Docket Number: No. 75-3475,75-3475
• Citation: 557 F.2d 1316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert C. DREBIN, Budget Films, Inc., Lawrence S. Fine and Bruce M. Venezia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1316

557 F.2d 1316

195 U.S.P.Q. 619

UNITED STATES of America, Plaintiff-Appellee, v. Albert C. DREBIN, Budget Films, Inc., Lawrence S. Fine and Bruce M. Venezia, Defendants-Appellants.

No. 75-3475.

United States Court of Appeals Ninth Circuit.

July 21, 1977.

Gerald M. Singer and Gerald F. Uelman, argued, Los Angeles, Cal., for defendants-appellants.

Vincent J. Marella, argued, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Albert Drebin, Lawrence Fine, and Budget Films, Inc. have appealed their convictions, following a jury trial, on six counts (Counts Five through Ten) of willful and for-profit infringement, by vending, of copyrighted motion pictures, in violation of 17 U.S.C. § 104; ¹ three counts (Counts Two through Four) of interstate and foreign transportation of stolen and converted property the copyrighted motion pictures in violation of 18 U.S.C. § 2314; and one count (Count One) of conspiracy to commit these offenses, in violation of 18 U.S.C. § 371. ² Bruce Venezia has appealed his conviction of conspiracy (Count One.) ³

Drebin was fined $20,000 and sentenced to concurrent one year prison terms on each of the counts, with all but three months suspended and probation for three years on condition that the fine be paid. Fine was fined $10,000 and sentenced to concurrent nine-months prison terms under the same conditions. Venezia received a suspended six months sentence and was placed on probation for two years and fined $1,000. Budget Films was fined a total of $18,000.

Factual Background

Budget Films is a corporation licensed to distribute, rent, and lease films produced by many major studios and maintains an inventory of over 30,000 reels of film. In addition to film rentals, Budget sells film prints. Drebin has been president of Budget Films since its incorporation in 1969 and prior thereto was the sole owner of the business. He was been involved in the motion picture business for approximately 30 years. Fine was vice-president and later secretary-treasurer of Budget Films.

The transactions set forth in the indictment involved eight sales of numerous films to three unindicted co-conspirators, Harry Katz, Johnny Holmes, and Peter Theologo, who operated film libraries or rental agencies in South Africa.

At trial it was stipulated that all of the motion pictures named in the indictment were validly copyrighted. Representatives of the motion picture studios and other copyright proprietors testified with respect to the policies and procedures of the studios in the distribution of their films. The major areas of distribution include theatrical (movie theatres), non-theatrical (private groups), television, airlines and steamships, Armed Services, "V.I.P." (prominent members of the motion picture industry or community), and "studio accommodation" (inter-studio exchanges of films for technical and casting purposes).

All of the studio representatives testified that films are not sold but are licensed for use in the various areas of distribution, and that no prints of the films listed in the indictment had been sold. They testified further that none of the defendants were authorized to possess or sell any of these films. The license agreements were admitted in evidence.

The three unindicted co-conspirators, who had been granted immunity, testified regarding the purchase of films from appellants, including the films specified in the indictment, and their shipment to South Africa.

The defense called numerous witnesses in an effort to prove that films are generally available for sale. The defense sought also, on cross-examination of government witnesses, to establish that the license and lease agreements, made by the studios of their motion pictures, were actually sales.

Testimony was received regarding the destruction of worn-out films by salvage companies. There was some conflict and ambiguity in the evidence with respect to the alleged sale of film by salvage companies. ⁴

Appellants' Contentions

Appellants contend that: (1) the search of Budget Films was in violation of appellants' Fourth Amendment rights and the evidence seized should have been suppressed; (2) appellants were denied due process by (a) the Government's use of superseding indictments, (b) its failure to comply with an order for a bill of particulars, and (c) its "unbridled expansion of the scope of the charges"; (3) the evidence was insufficient to sustain the convictions; (4) the instructions did not accurately state the law; (5) prosecutorial misconduct deprived appellants of a fair trial; (6) the sentences imposed on Venezia were ambiguous; and (7) the prosecution was barred by the statute of limitations.

I. Search of Budget Films

On January 7, 1975, on the basis of an affidavit by an F.B.I. agent, a warrant was issued to search the Budget Films premises and seize:

". . . illegally reproduced and stolen copies of 35mm, 16mm, and 8mm motion picture films which are duly copyrighted and protected by the provisions of the United States Copyright law embodied in Title 17, United States Code; books, records, papers and other documents relating to the manufacture and sale of such motion pictures and equipment used in the sale and distribution of such motion pictures which are the fruits and instrumentalities of violations of Title 17(18), United States Code, 371 and 2314."

On January 8, 1975, nineteen F.B.I. agents began the search, which continued throughout the day and the following night for a total of eighteen hours. Incident to the search, the agents seized 551 film prints and thousands of documents which were placed in several file cabinets and six or seven cardboard boxes.

Appellants' motion to suppress the evidence seized pursuant to the warrant was heard and denied on April 7, 1975. Appellants claim the court erred in that (1) the affidavit in support of the warrant contained materially false and inaccurate information, (2) the affidavit did not state probable cause, and (3) the warrant did not specify the property to be seized with sufficient particularity to preclude a general search. We agree with appellants that the evidence should have been suppressed because the warrant authorized an unlawful general search.

The Fourth Amendment provides that no warrant shall issue except upon probable cause and "particularly describing the place to be searched, and the persons or things to be seized". "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). "Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission." United States v. Quantity of Extracts, Bottles, etc., 54 F.2d 643, 644 (S.D.Fla.1931).

We conclude that the search here was an unreasonable and unlawful general search of Budget's premises. The warrant is similar to warrants found to be too general in United States v. Marti, 421 F.2d 1263 (2 Cir. 1970). The warrants in Marti were directed to "any peace officer in the City of New York", and authorized a search for "certain property (which) is being used and/or possessed in violation of Section 235.05 subd. 1 (Obscenity) of the New York State Penal Law". The Court found the warrants "deficient for failing to describe with particularity the items to be seized as required by the Fourth Amendment". The court continued: "The warrants themselves gave no guidelines to the officers as to what is obscene and what is not. Thus, the warrants on their face left to the executing officials the discretion of deciding what materials were obscene". 421 F.2d at 1268. Similar to Marti, this warrant left to the executing officers the task of determining what items fell within the broad categories stated in the warrant. The warrant provided no guidelines for the determination of which films had been illegally reproduced.

We conclude, however, that the error in admitting this evidence was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman held that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt". 386 U.S. at 24, 87 S.Ct. at 828. The Court in Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969), explained the function of an appellate court under Chapman : "Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the (erroneously admitted evidence) on the minds of an average jury". Citing the preceding quotation from Harrington, the Court in Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972) concluded: "Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In this case, we conclude that the 'minds of an average jury' would not have found the State's case significantly less persuasive had the (improper) testimony . . . been excluded." In light of these principles, we examine the impact of the illegally seized evidence.

The evidence introduced against Drebin consisted of ten exhibits ⁵ and was offered to show Drebin's familiarity with copyright law....