U.S. v. Marks

• Decision Date: 05 October 1978
• Docket Number: No. 77-5382,77-5382
• Citation: 585 F.2d 164
• Parties: 4 Fed. R. Evid. Serv. 316 UNITED STATES of America, Plaintiff-Appellee, v. Stanley MARKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 164

585 F.2d 164

4 Fed. R. Evid. Serv. 316

UNITED STATES of America, Plaintiff-Appellee, v. Stanley MARKS, Defendant-Appellant.

No. 77-5382.

United States Court of Appeals, Sixth Circuit.

Argued June 9, 1978.

Decided Oct. 5, 1978.

Arthur M. Schwartz, Denver, Colo., Robert E. Smith, Atlanta, Ga., Mott V. Plummer, Newport, Ky., for defendant-appellant.

Patrick H. Molloy, U. S. Atty., James E. Arehart, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.

Before WEICK, ENGEL and MERRITT, Circuit Judges.

ENGEL, Circuit Judge.

Stanley Marks appeals from a judgment entered upon a jury verdict finding him guilty on two counts of transporting obscene materials in interstate commerce and one count of conspiracy to commit that offense, in violation of 18 U.S.C. §§ 1465 and 371 (1976) respectively. ¹

Marks was earlier convicted on these same charges as well as additional counts of the substantive offense. United States v. Marks, 520 F.2d 913 (6th Cir. 1975). These convictions were reversed by the Supreme Court on the ground that the district court erred when, in charging the jury, it employed the definition of obscenity set out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). That Court held that since the charged offenses occurred prior to Miller, Marks' conduct should have been measured by the standards of Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

In a second trial, Marks was convicted of Counts I, II and IX of the indictment. Count I charged Marks, Henry Mohney, Guy Weir, and the American Amusement Company, Inc. with knowingly transporting an obscene film, "Deep Throat", from Michigan to Newport, Kentucky. Count II charged the same defendants with transporting an obscene film, "Swing High", also from Michigan to Newport. Count IX charged those same defendants and a fifth, American News Company, Inc., also known as American News Distributing Company with conspiring to transport obscene materials in interstate commerce. ²

Viewed in the light most favorable to the government, the evidence showed that Marks' name appeared on the occupational license in the Cinema X Theatre in Newport, Kentucky, where the films were shown, on Newport tax records for that establishment, and on applications for telephone service made by American Amusement for Cinema X. American Amusement, located in Durand, Michigan, was wholly owned by codefendant Mohney and was a distributor of films to Cinema X and other members of a chain of theaters. On the aforementioned telephone applications Marks was listed as a partner of Mohney, and those two defendants along with Weir had been seen on one occasion together in Newport. Employees of Cinema X indicated that Marks generally performed supervisory functions at the theater.

The government also relied upon certain corporate documents of American Amusement, including "booking sheets" and "play date sheets", to show the normal shipping practices between Durand and Newport. There were no documents showing that "Deep Throat" and "Swing High" were actually shipped from Durand to Newport. There were, however, sheets indicating what movies were tentatively scheduled to play at Cinema X, although these apparently did not indicate the source of the movies. The testimony is uncertain concerning the exact exchange of documents between American Amusement and Cinema X, but apparently "booking sheets" were prepared by Marks or Weir who submitted them to American Amusement for confirmation. These sheets were requests for the particular films, and if the particular movie was unavailable another would be substituted. At the time of shipment, another document would be sent along with the movie giving instructions concerning where the film should be sent next. The documents contained the name American Amusement in a corner. Finally, of course, the seized films were introduced and shown to the jury.

On appeal Marks presents three issues. He argues that the admission into evidence of codefendant Weir's prior grand jury testimony violated his Sixth Amendment right of confrontation, relying on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Second, he contends that as a matter of law the films "Deep Throat" and "Swing High" are not obscene and are thus protected by the First Amendment. Third, he complains of improper comment by the prosecutor in his closing argument and urges that, absent the Bruton testimony, the evidence was not sufficient to convict him.

I.

At trial the government read into evidence the prior recorded grand jury testimony of codefendant Guy Weir which concerned in general the authentication and explanation of certain documents belonging to American Amusement. Marks' attorney adequately preserved an objection to the introduction of this evidence on the basis of the defendant's right to confront and cross-examine the witnesses against him. The attorney also moved for a mistrial following introduction of the evidence. The motions were denied and no limiting instructions were given before or during the reading of the transcript. However, during the general charge at the conclusion of the trial, the court instructed the jury that Weir's testimony was admissible only as to him.

Marks argues that Weir's grand jury testimony directly incriminated him because it identified him as the owner of Cinema X and as the person who did the "booking" for Cinema X. Weir's grand jury testimony was read to the jury by former Assistant United States Attorney Louis DeFalaise, who had conducted the examination of Weir before the grand jury:

"QUESTION: Now, the item we refer to has been marked as Exhibit One, indicates that the movie entitled 'Girl Friday' plus 'Throat' was being shown at Cinema X Theatre in Newport, Kentucky, from February 14th of 1973 to February 20th of 1973; is that correct?

"ANSWER: To the best of my knowledge. I can't these here being down there didn't necessarily mean that those particular films were shown.

"QUESTION: Right.

"ANSWER: At that time or any other time; it's a tentative schedule.

"QUESTION: Right. This document, Exhibit One, also reflects February the 2nd, 1973, to the 20th, 1973, of February of 1973, 'Swing High' and 'Deep Throat' followed February 26th to March 6th, 'Sexual '

"ANSWER: 'Therapist', I believe.

"QUESTION: 'Therapist', plus 'Coming Through the Window', question marks, week of March 7th to the 13th to the 14th to the 20th, 21st to the 27th of March of 1973, 'Girl Friday', 28th to April 3rd, 'Wise Husbands', plus 'Bare Country'. Now, does this sheet, then, indicate that you, in fact, were distributing the movie 'Deep Throat', to the Cinema X Theatre?

"ANSWER: Distributing?

"QUESTION: Well, having some connection with the fact that it was showing at Cinema X Theatre.

"ANSWER: Well, being the schedule on there, yes.

"QUESTION: All right.

"ANSWER: As far as the

"QUESTION: The second sheet, the second sheet of this exhibit that you have produced as Government Exhibit One, or Grand Jury Exhibit One, shows that 'Deep Throat' was also playing from January 24th through February 13th. I assume that is the first sheet, and the other sheet that I mentioned was the second sheet?

"ANSWER: Mm-hum.

"QUESTION: Who prepares these sheets?"

(objections omitted)

"ANSWER: Well, Stanley Marks does the booking for the Cinema X.

"QUESTION: I see.

"ANSWER: In Newport.

"QUESTION: But, then, you actually supply the film from American Amusement Company?

"ANSWER: Not all the time we don't, no.

"QUESTION: Well, how would it happen that you would have this sheet in your possession?

"ANSWER: He submits this to us, because the daily report forms go in there.

"QUESTION: I see. Why would Mr. Marks submit such report sheets to you?

"ANSWER: Just to verify what he has booked

"QUESTION: I see.

"ANSWER: for his theatre.

"QUESTION: I see. Are we to assume from that, then, that Mr. Marks must report to the American Amusement Company what he's booked in the theatre?

"ANSWER: This I don't know as he must, but he does.

"A GRAND JUROR: I want to get straightened out on booking sheets. Did you testify that Stanley Marks did all the booking for Cinema X, am I correct?

"THE WITNESS: He does the booking for Cinema X.

"A GRAND JUROR: Is there a difference between booking and scheduling, or is the term synonymous?

"THE WITNESS: Well, yes, there is a booking they may request, and they may not be available, so something may have to be supplemented in that case to take its place. . . ."

Marks argues that the foregoing testimony was crucial to his conviction because no other evidence linked him to the operation of the theater and because it was especially material to the interstate commerce element and his knowledge of the general nature of the films.

The government's response is that the statement was not clearly incriminating at all and thus Bruton should not apply. It contends that any possible objection was waived by counsel's failure to request a severance of trials or a redaction of Marks' name from the transcript. Finally it states that the statements as to Marks were insignificant in relation to abundant other evidence of his guilt and thus any error was harmless.

We hold that Bruton v. United States, supra, applies. In Bruton testimony was introduced at a joint trial concerning oral confessions made by codefendant Evans after his arrest, admitting that he and defendant Bruton had committed the armed robbery offense. Evans did not take the stand and thus his out-of-court statement was not subject to cross-examination. The Supreme Court held that Bruton had been denied his right of confrontation under the Sixth Amendment because the jury instructions limiting the use of Evans' testimony were not an adequate substitute for Bruton's right of cross-examination....