U.S. v. Battista

Citation646 F.2d 237
Decision Date06 April 1981
Docket Number79-5257,Nos. 79-5165,s. 79-5165
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Anthony BATTISTA (79-5165) T. Anthony Arnone (79-5257) Louis Peraino (79-5258)Bryanston Distributors, Inc. (79-5259) Gerard Damiano Film Productions, Inc.(79-5260), Defendants-Appellants. to 79-5260.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Robert E. Smith, Atlanta, Ga., for Anthony Battista and T. Anthony arnone.

Phillip E. Kuhn, Finley, Stein, Kuhn, Bienvenu, Kuhn & Schwartz, Memphis, Tenn., for Louis Peraino, Bryanston Distributors, Inc., and Gerard Damiano Film Productions, Inc.

W. J. Michael Cody, U. S. Atty., Robert M. Williams, Asst. U. S. Atty., for the U. S.

Before WEICK, LIVELY and KENNEDY, Circuit Judges.

WEICK, Circuit Judge.

Defendants have appealed to this court from the judgment of conviction and sentence entered by the district court upon a verdict of guilty returned by a jury in their second trial on an indictment charging them with conspiracy to violate the obscenity statutes, 18 U.S.C. § 1462 and § 1465 by transporting the obscene film Deep Throat in interstate commerce. 1 Three of the defendants who were tried, Angelo Miragliotta, Anthony Novello, and Mario De Salvo were found not guilty and the charges were dismissed as to them. The defendants found guilty were sentenced as follows: Louis Peraino, 3 years, all but 6 months suspended and a fine of $10,000; Gerard Damiano Film Productions, Inc., fined $10,000; Bryanston Distributors, Inc., fined $10,000; T. Anthony Arnone, 2 years with all but 5 months suspended and a fine of $3,000; Anthony Battista, 2 years with all but 2 months suspended and fined $2,000; Carl R. Carter, imposition of sentence suspended, 5 years probation and fined $1,500; Mell Friedman, 4 months concurrent, 1 year probation and fined $3,000; Michael Cherubino, mistrial declared when jury was unable to agree, charges dismissed.

The appeals were consolidated for oral argument and were submitted to the court on 6 large appendices totaling 3033 pages, 121 transcripts, appellants' briefs raising many issues with subdivisions; the government's brief of 114 pages and lengthy oral arguments. It appears to us that these cases have been given very careful consideration by the district judge and also by the jury. As indicated above, one defendant was given probation and fined $1,500, the sentences of imprisonment ranged from 2 months to 8 months and the fines ranged from $1,500 to $10,000 with most in the lower range.

On appeal, the appellants, jointly or severally, when applicable, have questioned the propriety of the proceedings before the grand jury; the constitutionality of the obscenity statute 18 U.S.C. 1465; the sufficiency of the evidence; the seizure of the film; the admission or exclusion of evidence; the closing argument of the Assistant United States Attorney; the court's instructions to the jury; the court's failure to discharge the jury prior to the Christmas recess; the sentencing of Louis Peraino.

As we will point out hereinafter none of these contentions has merit and the convictions will be affirmed.

I

The Grand Jury Proceedings.

In the district court, appellants attacked the grand jury proceedings by filing a motion to dismiss the indictment. Prior to the first trial, they made a similar attack which was denied by the court. They contend that the 1974 grand jury which returned the indictment (CR-124) was not properly constituted; that the grand jury did not have probable cause on the issue of obscenity to return the indictment; that the grand jury was not properly instructed on the law of obscenity.

The attack on the 1974 indictment would seem to be irrelevant and misplaced because it was supplanted by a superseding indictment in 1975 being CR-91.

The government strenuously objected to any inquiry into or invasion of the secrecy of the grand jury proceedings. The district court, however, out of an abundance of caution, conducted a lengthy evidentiary hearing. The government called the foreman of the grand jury, Herschel McElroy, who testified. The defendants called two F. B. I. special agents.

A stipulation of facts was approved by all parties and read into the record. The relevant provisions are as follows:

The grand jury which had been impaneled on January 22, 1973, which was extended to June 25, 1973, heard proof concerning the distribution of Deep Throat. On November 15, 1973, this 1973 grand jury viewed the entire film content of Throat at the Tri-State Theater, Memphis, Tennessee. On December 10, 1973, it heard testimony of approximately eight witnesses concerning the conspiracy involving the film.

In January of 1974 a new grand jury was impaneled. It continued the investigation of Throat and the conspiracy. Between January and the end of June, 1974, on more than eight occasions, it heard testimony from various witnesses. On May 8, 1974, it also went to view the film. After seeing 15 to 20 minutes of it, they decided they had seen enough and elected not to see the remainder.

On May 1, 1974, all three judges in this district entered an order extending the term of the 1974 grand jury until the end of December, 1974. By Court order of July 13, 1974 twelve members of the grand jury were replaced by twelve members that were newly qualified. Eleven of the original members of the 1974 grand jury elected to continue to serve for the second six month period.

During early August of 1974, the 1974 grand jury heard testimony of five witnesses concerning the conspiracy surrounding Throat. (From November 1973 through August of 1974 the grand jury heard testimony of more than sixteen witnesses; a number of witnesses cited above in certain cases were witnesses who were called back.)

On August 15, the 1974 grand jury returned the indictment in the case styled CR 74-124 naming as defendants Anthony Joseph Peraino, Louis Peraino, Robert J. DeSalvo, T. Anthony Arnone, Anthony Battista, Mario DeSalvo, Gerard Damiano Film Productions, Inc. and AMMA Corporation.

In January of 1975 a new grand jury was impaneled. It continued to hear proof concerning the investigation of the conspiracy involving Throat. On June 13, 1975, this grand jury returned a superceding indictment styled CR 75-91 naming as defendants each of the ones previously named in CR 74-124 and adding the following defendants: Herbert Nitke, Michael Cherubino, Joseph Peraino, Carl Carter, Mel Friedman, Herbert Streicher, Bryanston Distributors, Inc., Maines & Associates, Inc., and Plymouth Distributors, Inc.

Each of these three grand juries, 1973, 1974 and 1975, was given instructions regarding the law of the definition of obscenity by the Assistant United States Attorney handling the case. These instructions included the Miller test of obscenity. There is no recollection by anyone concerning whether or not children were included in the make up of the average person in the community as that phrase is applied to the definition of obscenity.

This stipulation expressly does not waive the United States' vigorous objection to this inquiry into the secrecy of the grand jury proceedings regarding this case and this stipulation is subject to any facts revealed at the hearing.

The 1975 grand jury did not see the movie Deep Throat. (Ap. 2951-57).

The indictment and conviction of Joseph Peraino and Plymouth Distributors is being reviewed separately in Appeal No. 79-5081.

Mr. McElroy served as foreman on the 1975 grand jury involved in the investigation of Deep Throat for the entire year. He had seen the movie and testified that two other members of the grand jury had seen it. The indictment was returned in June, 1975. The proof presented to the grand jury as to the sexual content of Deep Throat was the sworn testimony of an FBI Special Agent who read a detailed account of the movie including examples. The examples were oral sex; group sex; cunnilingus; and heterosexual intercourse. They clearly constituted hard core pornography. United States v. Marks, 520 F.2d 913 (6th Cir. 1975) reversed in other grounds 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

Mr. McElroy on cross-examination further described the testimony of the FBI special agent before the grand jury as follows:

It seemed to me he went into great detail to set each scene, the characters and exactly what they were doing down to the greatest detail. I was sitting there comparing it to the film I had seen not too many months earlier. I could not have sat there myself and written down anything closer to what the film actually represented. (Ap. 2998).

I couldn't believe that I was reliving scenes of the film as it went from scene to scene. There were some that asked me, some other jurors, that had not seen the film. They knew I had seen it, and I couldn't think of anything that wasn't included. (Ap. 3000).

The district court properly denied the motion to dismiss.

In our opinion, it was not necessary for the district court to probe into the secrecy of the grand jury proceedings. There is a presumption of regularity which attaches to such proceedings and the defendants have a difficult burden to prove any irregularity. Cf. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. den., 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). The defendants proved no irregularity in the present case. The defendants must also demonstrate a particular need that outweighs the secrecy policy. United States v. Proctor & Gamble, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

In our opinion, the indictment was valid on its face. Any error on the part of the district court in probing the secrecy of the grand jury proceedings occurred at the insistence of the defendants and was harmful only to the government.

The validity of an indictment is not affected by the type of evidence which is considered by a grand jury even though inadequate or incompetent. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613...

To continue reading

Request your trial
53 cases
  • U.S. v. McLernon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 20 Diciembre 1984
    ...of withdrawal from the conspiracy. The court instructed the jury in accordance with this Circuit's decision in United States v. Battista, 646 F.2d 237, 246 (6th Cir.), cert. denied, 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1981) that the burden is on the defendant to establish such wit......
  • U.S. v. Chambers
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 10 Septiembre 1991
    ...the jury that she had withdrawn from the conspiracy. Withdrawal from a conspiracy is an affirmative defense. United States v. Battista, 646 F.2d 237, 246 (6th Cir.), cert. denied, 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 Mere cessation of activity in furtherance of an illegal conspiracy......
  • US v. Pryba
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 12 Febrero 1988
    ...to those defendant is charged with circulating does not automatically mean that charged materials are not obscene); United States v. Battista, 646 F.2d 237, 245 (6th Cir.) (community acceptance rather than community tolerance is the correct measure of obscenity), cert. denied, 454 U.S. 1046......
  • US v. Taylor
    • United States
    • U.S. District Court — Northern District of Indiana
    • 20 Junio 1996
    ...to grand jury proceedings and that the defendant cannot meet his difficult burden to prove any irregularity under United States v. Battista, 646 F.2d 237, 242 (6th Cir.), cert. denied, 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1981). Additionally, the Government contends that the presen......
  • 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