U.S. v. Cohen, s. 77-1831
| Decision Date | 12 September 1978 |
| Docket Number | 77-1853,Nos. 77-1831,s. 77-1831 |
| Citation | 583 F.2d 1030 |
| Parties | UNITED STATES of America, Appellee, v. Howard K. COHEN, Appellant. UNITED STATES of America, Appellee, v. Angelo M. GIUDICE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roger Jon Diamond of Hecht, Diamond & Greenfield, Pacific Palisades, Cal., for appellants.
Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee; James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, on the brief.
Before HEANEY and STEPHENSON, Circuit Judges, and BECKER, Senior District Judge. *
These are consolidated appeals by Howard K. Cohen (Cohen) and Angelo M. Giudice (Giudice). Each appeal from the judgment of conviction following a joint trial by jury in the United States District Court for the Northern District of Iowa.
Cohen and Giudice were individually and jointly charged in a single indictment containing 14 separate counts charging violations of Sections 2, 371, 1461, and 1462, Title 18, United States Code. 1 All statutory references hereinafter are to sections of Title 18, United States Code. The separate counts, the statutes on which each is based, and the jury verdict on each count are presented below in tabular form.
Sections on
Count Gist of Which Count Verdicts of
Number Count is based Jury
------ ----------- ----------- -----------------
1 Conspiracy Sec. 371 Cohen--Guilty
Giudice--Guilty
2 Substantive Secs. 2; 1461 Cohen--Guilty
Offense Giudice--Guilty
3 " Secs. 2; 1461 Cohen--Guilty
Giudice--Guilty
4 " Secs. 2; 1461 Cohen--Guilty
Giudice--Guilty
5 " Secs. 2; 1461 Cohen--Guilty
Giudice--Guilty
6 " Secs. 2; 1461 Cohen--Guilty
Giudice--Guilty
7 " Secs. 2; 1461 Cohen--Guilty
Giudice--Guilty
8 " Secs. 2; 1461 Cohen--Not Guilty
Giudice--Guilty
9 " Secs. 2; 1461 Cohen--Not Guilty
Giudice--Guilty
10 " Secs. 2; 1461 Cohen--Not Guilty
Giudice--Guilty
11 " Secs. 2; 1461 Cohen--Not Guilty
Giudice--Guilty
12 " Secs. 2; 1461 Cohen--Not Guilty
Giudice--Guilty
13 " Secs. 2; 1461 Cohen--Not Guilty
Giudice--Guilty
14 " Secs. 2; 1462 Cohen--Not Guilty
Giudice--Guilty
Count I, charging criminal conspiracy to violate Sections 1461 and 1462, alleges the commission of 16 overt acts in furtherance thereof, all in violation of § 371.
Based on the verdicts of the jury, described above, Giudice was fined $250 on each of counts 1-14, and placed on probation for four years. Cohen was fined $500 on each of counts 1-7, and placed on probation for three years. We affirm each of the judgments of conviction.
On July 11, 1974, the Grand Jury in the Northern District of Iowa returned a 14-count indictment against appellants Cohen and Giudice and four other defendants, Robert Elkins, Stephen R. Ginsburg, Daniel Goldblum (also known as Danny Gold), and Richard J. Aronson, charging violations of § 1461 and § 1462. The indictment alleged the mailing, and using common carriers for the carriage in interstate commerce, from California to Iowa, of obscene materials, and advertisements informing how obscene materials might be obtained. All defendants moved for a change of venue from the Northern District of Iowa to the Central District of California for the convenience of parties and witnesses pursuant to Rule 21(b) F.R.Cr.P. The United States opposed the motion of the defendants for change of venue, but the District Court of the Northern District of Iowa granted the motion. United States of America v. Robert Elkins, et al., No. CR 74-4015 (N.D.Ia. December 6, 1974). The change of venue was granted on the ground that, while Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) requires the contemporary community standards of the Northern District of Iowa (the area of distribution of the material) regarding obscenity should be applied, under Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), opinion evidence may be received in the Central District of California of the contemporary community standards of the affected areas of Iowa.
In the Central District of California, a pretrial evidentiary ruling was made by the District Court that only the contemporary community standards of the Northern District of Iowa would be applicable at trial, and that these community standards could not be proven solely by means of expert opinion testimony, because expert testimony is admissible only to assist a jury in using its knowledge of contemporary community standards to determine the question of obscenity. For this reason, on its initiative the District Court for the Central District of California dismissed the indictment, without prejudice, stating:
The Court concludes that a jury selected from the residents of this District could not determine the contemporary community standards of the Northern District of Iowa by reason of its members not possessing the knowledge of a juror in Iowa of the community standards in which the Iowa juror resides, necessary in deciding what conclusion the average person, applying the contemporary community standards of Iowa, would reach based on the facts adduced in the instant case.
United States v. Elkins, (C.D.Cal.1975) 396 F.Supp. 314, l.c. 318.
Thereafter Cohen, Giudice, Elkins, Ginsburg and Goldblum were again indicted in the Northern District of Iowa on June 19, 1975, on essentially the same charges as in the first indictment dismissed in the Central District of California. In the second indictment, Aronson, a defendant in the first indictment, was named as an unindicted co-conspirator (R. 1). The defendants again moved for a change of venue from the Northern District of Iowa, which was also opposed by the United States, but the District Court again granted the motion of defendants to change the venue to the Central District of California, United States of America v. Robert Elkins, et al., No. CR 75-4022 (N.D.Ia. October 1, 1975).
The United States petitioned this Court for a writ of mandamus, challenging the validity of the second order changing the venue of the second indictment to the Central District of California. The petition for writ of mandamus was granted by this Court because ". . . under the circumstances of this case and in view of the recent decisions of the Supreme Court that obscenity Vel non must be determined on a local community standard, we have no choice but to order that this case be tried in Iowa." United States v. McManus, (C.A. 8 1976) 535 F.2d 460, l.c. 464, Cert. denied, McManus v. United States, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977).
On August 15, 1977, immediately prior to trial, defendants Elkins and Ginsburg pleaded guilty to Count 2 of the indictment (R. 78, 79). The United States dismissed the indictment against Goldblum in return for a guilty plea in an unrelated case in the Central District of California (Transcript, hereinafter "T". 195). The criminal action proceeded to trial against the two remaining defendants, Cohen and Giudice, on August 15, 1977 (T. 1).
Count I of the second indictment (indictment hereinafter) charged that from on or about June 1, 1973, until the date of the indictment, June 19, 1975, appellants Cohen and Giudice together with Elkins, Ginsburg, and Goldblum, all doing business as Hollywood Ltd., Metropolitan Mercantile, and Precision Fittings, wilfully and knowingly did conspire with each other and with Aronson, the unindicted co-conspirator, to cause to be delivered by mail, certain nonmailable matter, that is, obscene, lewd, lascivious, indecent, filthy, and vile advertisements and motion-picture films, in violation of § 1461; to cause to be delivered by mail, certain nonmailable matter, that is, advertisements giving information where, how, from whom, and by what means obscene, lewd, lascivious, indecent, filthy, and vile motion-picture films might be obtained, in violation of § 1461; and to use and cause to be used common carriers for carriage in interstate commerce, obscene, lewd, lascivious, and filthy advertisements and motion-picture films, in violation of § 1462.
Count 2 charged the mailing, on or about July 23, 1973, to Henry Gerdis, Woden, Iowa, in the Central Division of the Northern District of Iowa, of an advertisement, which was itself obscene.
Count 3 charged the mailing, on or about July 23, 1973, to Henry Gerdis, of an advertisement giving information by which two obscene films ("Deep Throat No. 2" and "John Holmes No. 9") might be obtained.
Count 4 charged the mailing, on or about August 1, 1973, to Elmer J. Duistermars, Sioux Center, Iowa, in the Western Division of the Northern District of Iowa, of an advertisement giving information by which two obscene films ("Deep Throat No. 2" and "John Holmes No. 9") might be obtained.
Count 5 charged the mailing, on or about August 1, 1973, to Elmer J. Duistermars, of an advertisement which was itself obscene.
Count 6 charged the mailing, on or about August 8, 1973, to said Duistermars, of an advertisement which was itself obscene.
Count 7 charged the mailing, on or about August 8, 1973, to said Duistermars, of an advertisement giving information by which two obscene films ("...
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