U.S. v. Marks

• Decision Date: 30 July 1975
• Docket Number: Nos. 74-1531,s. 74-1531
• Citation: 520 F.2d 913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley MARKS, d/b/a Cinema X Theatre, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. AMERICAN AMUSEMENT COMPANY, INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guy WEIR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry MOHNEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. AMERICAN NEWS COMPANY, INC., a/k/a American News Distributing Co.,Defendant-Appellant. to 74-1535.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 913

520 F.2d 913

UNITED STATES of America, Plaintiff-Appellee, v.Stanley MARKS, d/b/a Cinema X Theatre, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.AMERICAN AMUSEMENT COMPANY, INC., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Guy WEIR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Harry MOHNEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.AMERICAN NEWS COMPANY, INC., a/k/a American News

Distributing Co.,Defendant-Appellant.

Nos. 74-1531 to 74-1535.

United States Court of Appeals Sixth Circuit.

July 30, 1975.

Andrew B. Dennison, Brown, Dennison & Klayman, Cincinnati, Ohio, for marks.

Eugene E. Siler, Jr., U. S. Atty., Louis DeFalaise, Sp. Asst. U. S. Atty., Lexington, Ky., for U. S. in all cases.

Robert Eugene Smith, Gilbert H. Deitch, Atlanta, Ga., for Mohney, Weir and American Amusement Co., Inc.

Theodore G. Albert, Ironwood, Mich., for American News Co., Inc.

Before WEICK, McCREE and ENGEL, Circuit Judges.

WEICK, Circuit Judge.

The defendants were charged in a nine-count indictment with eight substantive offenses of transporting in interstate commerce from various states to Newport, Kentucky, copies of obscene, lewd, lascivious and filthy films and film previews for the purpose of sale and distribution, in violation of 18 U.S.C. § 1465, and in the ninth count with a conspiracy in violation of 18 U.S.C. § 371.

All of the defendants were acquitted by the jury of the charge contained in Count 8 of the indictment, which count involved the film preview "Let Me Count the Lays."American News Company, Inc. was convicted only on the conspiracy Count 9.The remaining defendants were convicted on Counts 1 through 7 and Count 9.The individual defendants were each given concurrent sentences of three months' imprisonment and fined $2,000.American News was fined $5,000, and American Amusement was fined $7,000.

Each alleged obscene film or film preview was made the subject of a separate count in the indictment.The films involved in Counts 1 through 7 of the indictment were "Deep Throat" and "Swing High".The film previews were "Doctor's Disciples,""Teenage Cowgirls,""Black On White,""Memoirs of a Madam," and "A Few Bucks More."

The films had been viewed at Cinema X Theatre in Newport, Kentucky, by Special Agent Glossup of the FBI, another agent, and an Assistant United States Attorney, who paid for their admissions to the theatre.A few days later Special Agent Aebly viewed the film "Swing High" and the film preview "Doctor's Disciples" at the theatre.

Special Agent Glossup had made an investigation and learned that Cinema X was regularly receiving shipments in interstate commerce and had received interstate shipments shortly prior to the showing of the films and previews at the theatre.He also found out that the film "Deep Throat" had been made outside of Kentucky.

Special Agents Glossup and Aebly then executed separate Affidavits for a Search Warrant, to search the premises of Cinema X Theatre in Newport.The affidavit of Special Agent Glossup set forth in great detail the facts as to what each film or film preview depicted and exhibited, and also the narration.¹

The affidavit of Glossup also stated that the films had been transported in interstate commerce.

The affidavit of Special Agent Aebly referred to Glossup's "companion" affidavit and stated that the films which he viewed were a violation of 18 U.S.C. § 1465 and provided an objective narrative of "Swing High" and "Doctor's Disciples."

The Government applied to a United States Magistrate for a search warrant based on the two affidavits and requested that the Magistrate set the time for a hearing on the issue of obscenity vel non.The Government also applied to the District Court for a temporary restraining order to prevent the removal or destruction of the films pending the obscenity hearing before the Magistrate, which application was granted.Copies of the restraining order and notice of hearing before the Magistrate were served on the individual then in charge of Cinema X.

A motion to dismiss was filed by appellant, Stanley Marks, doing business as Cinema X Theatre, and it was denied by the District Judge.

The Magistrate conducted a hearing on the issue of obscenity.Special Agents Glossup and Aebly testified and were cross-examined and their affidavits were admitted in evidence.Near the conclusion of the hearing Mr. Marks asked for a continuance to present expert testimony on the issue of obscenity, which request was denied, and the search warrant was issued.The record does not reveal any effort by the appellant Marks to present the films to the Magistrate to aid him in making his determination of obscenity.

A search of the premises of Cinema X Theatre was conducted.The films and film previews which are the subjects of the indictment were seized along with advertising displays and time schedules.

A motion to suppress was made and was denied.

I

In our opinion there was probable cause for the Magistrate to issue the search warrant.The action of the Magistrate in issuing the search warrant was supported by the affidavits of Special Agents Glossup and Aebly.These affidavits clearly indicated that the films involved hard core pornography of the worst sort.

The showing of the film was not protected by the First Amendment.It was not required that the Magistrate view the films.He could accept the sworn statements of the two Special Agents which graphically portrayed the films as well as the sound features.The Special Agents were also examined and cross-examined at the hearing.

If Mr. Marks desired to offer expert testimony on the obscenity issue he should have presented his witnesses at the hearing and not asked for a continuance, which the Magistrate was not bound to grant.We find no abuse of discretion on the part of the Magistrate.

Nor do we find any error on the part of the District Court in granting a temporary restraining order without notice to appellants, which injunction was granted for the sole purpose of preventing the destruction or removal of the films and thereby preserving the status quo.United States v. Little Beaver Theatre, Inc., 324 F.Supp. 120(S.D.Fla.1971).

The affidavit of Agent Glossup also was sufficient to establish that the films had been transported in interstate commerce.

The District Court was correct in denying the motion to suppress.

II

In our opinion the provisions of 18 U.S.C. § 1465 are not vague nor overbroad.The statute is constitutional.Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973);United States v. 12 200-ft. Reels of Super 8MM Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500(1973);Smith v. United States, 505 F.2d 824(6th Cir.1974);United States v. Hill, 500 F.2d 733(5th Cir.1974);United States v. Manarite, 448 F.2d 583(2d Cir.1971), cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d 264(1971).

III

In arguing that there was no proof of conspiracy, the appellants assert that it was necessary to prove that they had actual knowledge that the films were obscene under the law.We disagree.

The scienter required to support their conviction, however, was not that they actually knew that the films were obscene under legal standards, but only that they knew the general nature and character of the films.Rosen v. United States, 161 U.S. 29, 41, 42, 16 S.Ct. 434, 40 L.Ed. 606(1896).This was made explicit in United States v. Hamling, 481 F.2d 307(9th Cir.1973), aff'd, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590(1974);United States v. Mishkin, 317 F.2d 634, 637(2d Cir.1963), cert. denied, 375 U.S. 827, 84 S.Ct. 71, 11 L.Ed.2d 60(1963).

It was not necessary that the films be judicially determined to be obscene before any conspiracy to violate Section 1465 could exist.

In our opinion there was substantial evidence to support the conviction of the appellants on the conspiracy count.

IV

The use of a multi-count indictment was not unconstitutional and no case cited by appellants so holds.Each count of the indictment charges a separate and distinct offense.The criteria to establish each offense is different.

What appellants are really complaining about is that the proof did not show that each film or film preview was shipped in interstate commerce on a day certain.The indictment alleged that "Deep Throat" was shipped between the dates of January 24 and January 31, 1973; that "Swing High" was shipped between February 1 and February 27, 1973; that the remaining shipments were made between January 15 and February 27, 1973.The exact dates of these shipments could not very well be proven by the Government because Cinema X had destroyed its records of the shipments.

In our opinion the transportation of each film or film preview constituted a separate offense.United States v Bennett, 383 F.2d 398(6th Cir.1967).See alsoSanders v. United States, 441 F.2d 412(10th Cir.1971).

The proof established that Cinema X was receiving shipments from different states.

There was some evidence that "Deep Throat" was filmed in New York and Florida.

The conspiracy would also constitute an offense separate from the substantive offenses.

In any event, there could be no prejudice to the appellants because the sentences on all the counts were made concurrent.

V

The District Court did not err in denying the motion of the defendants to voir dire the jury to determine whether they heard all of the film dialogue of "Deep Throat" shown in the courtroom.

Their first motion was addressed to whether the jury could hear and "understand" the dialogue, but later defendants dropped the "understand" part.

The District Court said:

THE COURT: Very well.I overrule your motion.I heard the dialogue, I saw the picture.I can't say I understood the dialogue in its greatest detail, but I understood it well enough to get the sense of the picture as these experts,...