U.S. v. Sandy

Decision Date27 July 1979
Docket NumberNos. 77-5367,s. 77-5367
Citation605 F.2d 210
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerome SANDY and American International Pictures Exchange of Washington, D. C., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Ellis GORDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marvin ZIDE and Allied Film Exchange, Inc., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. John O. GLAUS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marvin FRIEDLANDER and Marvin Films, Defendants-Appellants. to 77-5371.
CourtU.S. Court of Appeals — Sixth Circuit

James F. Neal, Neal & Harwell, Thomas H. Dundon, Nashville, Tenn., for defendant-appellant in No. 77-5367.

M. Anderson Cobb, Jr., Manire, Harris, Shelton & Dunlap, Memphis, Tenn., Robert F. Sylvia, Fine & Ambrogne, Boston, Mass., for defendant-appellant in No. 77-5368.

William D. Evans, Jr., Montedonico, Heiskell, Davis, Glankler, Brown & Gilliland, Memphis, Tenn., Robert F. Sylvia, Fine & Ambrogne, Boston, Mass., for defendant-appellant in No. 77-5369.

Ralph J. Cappy, Pittsburgh, Pa., Robert F. Sylvia, Fine & Ambrogne, Boston, Mass., for defendant-appellant in No. 77-5370.

Albert C. Harvey, Thomason, Crawford & Hendrix, J. Kimbrough Johnson, Memphis, Tenn., for defendant-appellant in No. 77-5371.

Larry E. Parrish, Sp. Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before ENGEL and KEITH, Circuit Judges and PECK, Senior Circuit Judge.

ENGEL, Circuit Judge.

Appellants were convicted in a non-jury trial of conspiring to distribute an obscene film, "School Girl", in interstate commerce, in violation of 18 U.S.C. §§ 371 and 1462 (1976). Their principal claim in this appeal is that they were prejudiced because the case was tried under the obscenity standards of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), only to be decided later by the trial judge under pre-Miller standards.

We hold upon the record before us that there was no prejudice which affected the substantial rights of the appellants and, finding no other error in the trial, affirm the convictions.

The indictment, returned by a federal grand jury in Memphis, Tennessee, on February 15, 1973, charged 25 individuals and organizations with conspiring to distribute "School Girl" in interstate commerce. The detailed allegations of the indictment and the overt acts expressly incorporated in it described activity which commenced with the production of the motion picture by certain of the conspirators, the sale of the rights in the movie to the defendant Sherpix for a total of $41,000, and the subsequent distribution for public exhibition of the film throughout the country by means of the various services offered by the remaining named defendants. The conspiracy charge, which was embraced in count 1 of the indictment, was fortified by five additional counts in which certain of the conspirators were charged with the substantive offenses of shipping the film in interstate commerce by use of a common carrier, contrary to 18 U.S.C. §§ 1462 and 2.

Of the 25 defendants charged in the conspiracy count, 15 waived jury and elected to be tried before the district judge. Seven other defendants, including all who were tried on the substantive charges, proceeded to trial by jury immediately following the non-jury trial of the appellants involved here. 1

All of the defendants who insisted upon their right to jury trial were acquitted on the conspiracy count but were found guilty of the several substantive offenses charged against them. 2 Conversely in the non-jury trial before District Judge Robert M. McRae, Jr., three defendants were acquitted and the remaining twelve were convicted, eight of whom have appealed here.

I.

In the non-jury trial held January 5-6, 1976, District Judge Robert M. McRae, obedient to our circuit's decision in United States v. Marks, 520 F.2d 913 (6th Cir. 1975) (Marks I ), considered that his determination of the issue of obscenity was to be governed by the standards set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), although all events alleged in the indictment occurred before Miller was decided. However, after the trial of the case but before filing his decision and entering judgment, the district judge learned that the Supreme Court had granted certiorari in Marks, supra, and accordingly delayed further proceedings in the case until the appeal was decided. On March 1, 1977, the Supreme Court held that persons indicted for conduct occurring before Miller were entitled to all of the benefits which Miller might confer, but were also entitled to application of the pre-existing Roth-Memoirs 3 test of obscenity, which primarily provided that materials could not be found to be obscene unless they were "utterly without redeeming social value." Marks v. United States, 430 U.S. 188, 196-97, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (Marks II ). On July 28, 1977, approximately five months after the Supreme Court's decision in Marks II, Judge McRae filed his findings of fact and conclusions of law. Applying both the Miller and Roth-Memoirs tests, 4 he adjudged the film to be obscene and found the appellants guilty.

As noted in Hamling v. United States, 418 U.S. 87, 99, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the definition of obscenity announced in Roth was substantially refined by the plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). To fall outside constitutional protection under Memoirs, "it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." 383 U.S. at 418, 86 S.Ct. at 977.

Miller v. California, supra, revised the Roth-Memoirs test determining obscenity in the following language:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest . . .;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific values.

Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. at 2615. The standards announced in Miller were made applicable to federal obscenity trials in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 129-30 & n. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

No appellant has disputed the trial judge's factual description of the content of "School Girl":

The school girl portrayed in the movie is a college student who undertakes to research a sex subculture. In order to do this she responds to certain classified ads in the college underground newspaper. This leads to a series of sexual episodes which include having sexual intercourse with a husband under the wife's direction and ultimate participation as a third party, mutual masturbation pursuant to direction from a man over the telephone, sexual intercourse oral and otherwise with a father and son team, and a group sex orgy. In addition, there are episodes in which complete actual and prolonged sexual intercourse between the school girl and her boyfriend is shown. There is a similar episode portrayed between the school girl's female roommate and the school girl's male professor who called at their apartment to inquire about the welfare of the school girl. In addition the school girl and her female roommate are shown in a prolonged lesbian episode.

All episodes show close shots of the genitals of the participants during the sexual encounters. 5

No party has claimed that under either test the film is constitutionally protected as a matter of law. 6 The issue, therefore, is whether any prejudice affecting the substantial rights of the defendants occurred because the case was tried under the Miller standards, but was finally decided under both Miller and pre-Miller standards.

We conceive that prejudice to substantial rights could exist by a midstream change in the rules such as occurred here. 7 We are, however, unable realistically to conceive of any prejudice upon this record.

Having lost below, all appellants indicate in this appeal that they wish to have a new trial based upon pre-Miller standards. There is, however, no complaint that the district court erred in excluding any evidence proffered by the defendants, although they now claim that the making of an offer of proof would have been an expensive and futile gesture in view of the court's pretrial ruling that Roth-Memoirs would not be applied. But see Rule 103(a)(2), Fed.R.Evid. While there was some suggestion on appeal that certain of the defendants might have wished, as a matter of afterthought, to introduce further expert testimony on the obscenity question and its application under pre-Miller standards, nothing concrete has been offered or even suggested which would indicate how the defendants would have conducted themselves differently, had it been known at the time of trial that pre-Miller standards were still applicable.

More particularly, certain appellants, notably Gordon, complain that the submission of the case on the Miller standards denied them an opportunity to "present evidence or argue that the film did not violate the Memoirs test, particularly the last part, requiring that the material be 'utterly without redeeming social value' for it to be found obscene." The simple answer to this, as we mentioned above, is that no offer was ever made, although many months elapsed from the date of trial due to the trial court's decision to wait for further guidance from the...

To continue reading

Request your trial
19 cases
  • U.S. v. Jeter
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 11 Octubre 1985
    ...Edwin Piper, who brought Jeter together with Lambert and delivered the grand jury carbon papers to Lambert. See United States v. Sandy, 605 F.2d 210, 215-16 (6th Cir.), cert. denied sub nom. Friedlander v. United States, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979) (even though a numb......
  • U.S. v. Thomas
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 12 Marzo 1996
    ...interstate distributors of obscenity to varying community standards. Hamling, 418 U.S. at 106, 94 S.Ct. at 2901-02; United States v. Sandy, 605 F.2d 210, 217 (6th Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 3. The Implications of Computer Technology on the Definition of......
  • U.S. v. Blackwell
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 29 Agosto 2006
    ...that a defendant conspired with all the alleged co-conspirators in order to convict a defendant of conspiracy. See United States v. Sandy, 605 F.2d 210, 217 (6th Cir.1979) (holding the acquittal of several jointly tried co-defendants in a conspiracy case was not grounds for reversing the co......
  • United States v. Grimm
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 9 Diciembre 2013
    ...suffice to establish venue in the district), cert. denied,528 U.S. 883, 120 S.Ct. 199, 145 L.Ed.2d 167 (1999); United States v. Sandy, 605 F.2d 210, 215–16 (6th Cir.) (overt acts alleged and proven to have been performed by an unindicted coconspirator sufficed to connect the defendants to t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT