599 F.2d 1349 (5th Cir. 1979), 78-3149, United States v. Middleton

Docket Nº:78-3149.
Citation:599 F.2d 1349
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Joseph MIDDLETON, Mastermind Productions, Bondi Walters, Variety Films, Inc., JACO Productions, Leroy Charles Griffith, George Edward Luther, Paris Follies, Inc., BGNO, Inc. and Leroy Griffith Enterprises, Defendants-Appellees.
Case Date:August 02, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1349

599 F.2d 1349 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellant,

v.

Joseph MIDDLETON, Mastermind Productions, Bondi Walters,

Variety Films, Inc., JACO Productions, Leroy Charles

Griffith, George Edward Luther, Paris Follies, Inc., BGNO,

Inc. and Leroy Griffith Enterprises, Defendants-Appellees.

No. 78-3149.

United States Court of Appeals, Fifth Circuit

August 2, 1979

Page 1350

John P. Volz, U. S. Atty., Robert J. Boitmann, Asst. U. S. Atty., New Orleans, La., for the U. S.

Charles E. Morris, Jr., Biloxi, Miss., for JACO Productions.

Louis B. Merhige, Michael Silvers, New Orleans, La., Elliott J. Abelson, Beverly Hills, Cal., for Charles Griffith, George Edward Luther and Paris Follies.

F. Irvin Dymond, Edward J. Castaing, Jr., New Orleans, La., for Joseph Middleton and Mastermind Productions.

Page 1351

Herbert S. Kassner, New York City, Wayne H. Carlton, Jr., New Orleans, La., for Bondi Walters and Variety Films.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, AINSWORTH and KRAVITCH, Circuit Judges.

AINSWORTH, Circuit Judge:

This is a prosecution for interstate transportation of the allegedly obscene motion picture "Illusions of a Lady." The indictment charged various defendants 1 with one count of knowingly using a common carrier to ship an obscene film interstate, in violation of 18 U.S.C. §§ 1462 and 2; 2 one count of knowingly receiving from a common carrier an obscene film that had been transported interstate, in violation of 18 U.S.C. §§ 1462 and 2; 3 and one count of conspiracy under 18 U.S.C. § 371 to violate section 1462. 4 The Government appeals from the order of the district court granting defendants' motions to suppress the film as evidence. The trial judge found that the United States magistrate issued the warrant to seize a print of the movie without probable cause. As we conclude, however, that probable cause of the film's obscenity existed, we hold that the district judge erred in his ruling and reverse.

I. Facts

We take the facts pertinent to this appeal from the affidavit of FBI Special Agent Frank Quijada, which was filed with the United States magistrate in support of Quijada's application for a search warrant. The affidavit read in full as follows:

AFFIDAVIT FOR

SEARCH WARRANT

I, Frank S. Quijada, affiant, being duly sworn deposes and says:

1. Affiant is employed as a Special Agent with the Federal Bureau of Investigation (FBI), United States Department of Justice. Affiant has been assigned to the investigation of the interstate transportation of obscene matter, within the jurisdiction of the FBI.

Page 1352

2. Affiant has conducted an investigation of the Sinerama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana, and as a result of my personal participation in the investigation, I have personal knowledge of the facts set out in this affidavit.

3. Affiant, based on the facts set forth in this affidavit, now has reason to believe and does believe that on the premises known as the Sinerama Adult Theatre, further described as a beige colored brick, glass fronted building appearing from the outside to be two stories, with a portico facing Tulane Avenue displaying three signs, one on each of three sides, stating Adult Sinerama Theatre. The words Adult and Theatre are written in black and the word Sinerama is in white block letters. The letters S, N, R, and M of Sinerama are on a red background and the letters I, E, A, and A are on a blue background. The Sinerama Adult Theatre is located at 3615 Tulane Avenue, and is bounded on the west side by South Telemachus Street and on the east side by South Genois.

4. The basis for affiant's beliefs set forth above are as follows:

5. On July 6, 1976, I observed an advertisement in the movie section of the "Times-Picayune" newspaper, New Orleans, Louisiana, dated July 6, 1976, for the Sinerama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana, telephone 488-3731. This advertisement stated that the currently featured movies playing at the Sinerama Adult Theatre were "Hullucination of a Lady" plus "Black Socks." This advertisement listed the address for the Sinerama Adult Theatre as 3615 Tulane Avenue, New Orleans, Louisiana, and listed the theatre telephone number as 488-3731.

6. On July 7, 1976, at approximately 11:05 A.M., I called telephone number 488-3731 and a male answered by saying "Sinerama Theatre." When I asked what features were currently playing at the Sinerama, the individual advised that the features were "Illusions" and "Black Socks."

7. On July 6, 1976, I contacted Robert E. Parrish of Film Inspection Service, 2411 Edenborn Avenue, Metairie, Louisiana. Parrish provided Film Inspection Service records to me which contained the below-described information:

a. Records revealed that the films entitled "Illusions of a Lady" and "Black Socks" were received by the Film Inspection Service, Metairie, Louisiana, on July 1, 1976, and that the films arrived from Atlanta, Georgia, where they had been shipped under Profit by Air Bill Number 30697741.

b. Records revealed that the films were given to the Sinerama Adult Theatre, New Orleans, Louisiana, on July 1, 1976, for a play date of July 2, 1976 through July 8, 1976.

c. Records revealed that the film "illusions of a Lady" consisted of eight 1,000-foot reels.

8. On July 7, 1976, Special Agent (SA) Aloysius J. McFall viewed the color movie "Illusions of a Lady" at the Sinerama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana, after paying an admission price of $5.00. The below is a description of the color movie "Illusions of a Lady" as described to me by SA McFall.

a. SA McFall advised me that the credits that appear at the beginning of the film show the title of the film to be "Illusions of a Lady" with two subordinate titles. He further advised that the credits show that the film is a Jonas Middleton Production starring Andrea True.

b. SA McFall advised me that at approximately 10:15 AM the movie, "Illusions of a Lady" began with a scene showing a white male model kissing the breast, thighs and vagina of a white female model. The male model is shown performing cunnilingus on the vagina of the white female and penetration by the tongue of the white male of the vagina is explicitly shown.

c. SA McFall advised me that another scene shows a white female model sitting on a couch and a white male model kneeling in front of the female. The female grabs the head of the male and she pulls it on to her vaginal area.

Page 1353

d. SA McFall advised that the movie contains a scene where a white male model is kissing a white female and that the female then assumes a reclining position on a table and that the male model is observed mounting the female and inserting his penis into her vagina. Sexual intercourse is explicitly shown with penetration from different angles.

e. SA McFall advised me that the movie contains a homosexual scene wherein two white nude females are observed performing the act of cunnilingus on each other with penetration of the tongue of the vagina clearly shown.

f. SA McFall advised me that the movie shows a scene where a white female model performs the act of fellatio on a white male model. The scene shows the penis of the male model penetrating into the mouth of the female while the female simultaneously masturbates the penis of the male.

g. SA McFall advised me that the film contains a scene wherein a white male model is observed to lay out the undergarmets of a female in the relative position as if they where on a woman. The male is observed fondling each piece of undergarmet and smells the panties before putting them on the rug. The male model fondles his penis and then lays on top of the undergarmets and performs hip motions as if he is engaged in the act of intercourse with the panties. The male model then dresses himself in the female undergarmets.

h. SA McFall advised me that the movie contains another homosexual scene where two white female models are observed kissing each other on the mouth and then one female model performing the act of cunnilingus on the second female with penetration of the tongue of the vagina clearly shown from different angles.

i. SA McFall advised me that the movie contains a scene wherein a white male model is shown masturbating his penis while at the same time fondling and kissing the heel of a black shoe. The male continues to masturbate until he ejaculates onto some female undergarmets which are in front of his penis. After the male ejaculates on the undergarmets he urinates on them.

j. SA McFall advised me that the movie contains a scene of unnatural sexual activity. A white female model inserts a carrot into her vagina and penetration of the carrot into the vagina is clearly shown. While the female inserts the carrot into her vagina she masturbates her clitoris with her other hand. The female then withdraws the carrot from her vagina and licks it with her tongue several times.

k. SA McFall advised me that the movie shows another scene of unnatural sexual activity when a white male model masturbates while a white female model holds a spoon in front of his penis. The male ejaculates and semen is shown falling on the spoon. The female then places her right index finger in the semen and then puts the right index finger in her mouth. The female then pours the semen in the spoon into a metal teapot and pours hot water into the teapot.

l. SA McFall advised me that the movie contains a scene of group sex involving three white female models and two white male models. A female model is observed inserting a cucumber...

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