U.S. v. Nu-Triumph, Inc., NU-TRIUMP
| Decision Date | 05 July 1974 |
| Docket Number | INC,NU-TRIUMP,No. 74-1028,74-1028 |
| Citation | 500 F.2d 594 |
| Parties | The UNITED STATES of America, Plaintiff-Appellee, v., a Calif. corp., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Burton Marks (argued), Beverly Hills, Cal., for defendant-appellant.
Mark O. Heaney, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Before CHAMBERS and ELY, Circuit Judges, and EAST, 1 Senior district judge.
Maurice J. Pastor, acting as president of the appellant (Corporation) and on its behalf, appeared personally and with chosen counsel, and, with the record approval and joinder of counsel, entered the Corporation's plea of guilty to a single charge of mailing certain obscene material in violation of 18 U.S.C. 1461. The Corporation was sentenced to pay a fine of $5,000, with the suspension of the payment of the remainder of $3,000 and probation for a period of three years, upon the condition, inter alia, that the Corporation 'not engage in the distribution of pornographic material.' Whereupon, additional counts in the indictment relating to the subject of obscene material against Pastor individually and the Corporation were dismissed on motion of the government.
Thereafter, the Corporation was charged with violation of the condition and ordered to show cause why the probation should not be revoked. The district court denied various intervening Rule 35, Federal Rules of Criminal Procedure, motions and following an evidentiary hearing, found the Corporation in violation of the condition of probation and ordered the payment of $1,500 upon the suspended fine of $3,000 and continued the probation on modified terms which are not involved in this appeal.
The Corporation appeals from the orders denying the Rule 35 motions and the judgment of sentence to pay the additional sum of $1,500 upon the original fine. We affirm.
The Corporation asserts four specifications of error. While not specifically spelled out in any of the four specifications, there is running throughout the Corporation's attack upon the condition the veiled claim of ambiguity and vagueness in the phrase 'pornographic matter.' Such a claim falls flat in the face of counsel's stipulation at the revocation hearing, reading: 'That the Corporation distributed material which was pornographic and, by definition, therefore, dealt with sexual matters.' Furthermore, Pastor was not a figurehead president, but rather he was the fountainhead and big wheel in the distribution business and affairs of the Corporation. Counsel appearing for the Corporation and Pastor, individually, jointly indicted, at the time of the entry of the Corporation's guilty plea advised the court with reference to Pastor as follows: and further, 'he recognizes, your Honor, that in connection with a jury trial that there is a possibility, perhaps even a likelihood, that a jury could find him guilty.' It is of importance to note that this advice to the court was given following a lengthy discussion on the financial status and ability of the Corporation to pay a substantial fine. Pastor, with his familiarity with and knowledge of what type of material is and is not proscribed as obscene by 1461, bargained for and traded the Corporation's plea of guilty for the dismissal of three counts against himself and two against the Corporation.
The challenged condition of probation is not a general proscription of conduct on the part of the general public, but on the contrary, a proscription of specific future conduct on the part of the Corporation as guided by Pastor, and related to past knowledgeable conduct.
The Corporation's claim of vagueness and uncertainty in the phraseology of the condition and that its guiding hand did not have reasonable means to know that the distribution of materials with some sexual overtones was...
To continue reading
Request your trial
-
U.S. v. Consuelo-Gonzalez
...preventing a repetition of the probationer's offense, and of successfully reintegrating him into society. See United States v. Nu-Triumph, Inc., 500 F.2d 594, 596 (9th Cir. 1974); See also Porth v. Templar, 453 F.2d 330, 333 (10th Cir. In Malone, this court upheld challenged conditions of p......
-
U.S. v. Tonry
...v. Carter, 9 Cir. 1959, 270 F.2d 521, 522 n. 2.11 United States v. Villarin Gerena, 1 Cir. 1977, 553 F.2d 723; United States v. Nu-Triumph, Inc., 9 Cir. 1974, 500 F.2d 594; Whaley v. United States, 9 Cir. 1963, 324 F.2d 356, Cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609; Barnhill......
-
Sanker v. United State
...509 F.2d 13, 15-16 (4th Cir. 1974), cert. denied, 421 U.S. 993, 95 S.Ct. 2000, 44 L.Ed.2d 483 (1975); United States v. Nu-Triumph, Inc., 500 F.2d 594, 596 (9th Cir. 1974); United States v. Hayward, 471 F.2d 388, 391 (7th Cir. 1972).7 See also Wright v. United States, D.C.App., 315 A.2d 839,......
-
U.S. v. Dane
...521 F.2d 259, 264 (9th Cir. 1975) (en banc); United States v. Winsett, 518 F.2d 51, 54-55 (9th Cir. 1975); United States v. Nu-Triumph, Inc., 500 F.2d 594, 596 (9th Cir. 1974). Thus, subject to the notice requirements set out in part II A, supra, the district judge may consider acts which a......