U.S. v. Sanders

• Decision Date: 02 April 1979
• Docket Number: No. 77-5715,77-5715
• Citation: 592 F.2d 788
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Randall SANDERS, Jr., Gulf Coast News Agency, Inc., Trans World America, Inc., a/k/a TWA, Inc., and William Walter, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 788

592 F.2d 788

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Randall SANDERS, Jr., Gulf Coast News Agency, Inc.,

Trans World America, Inc., a/k/a TWA, Inc., and

William Walter, Defendants-Appellants.

No. 77-5715.

United States Court of Appeals, Fifth Circuit.

April 2, 1979.

Glenn Zell, Atlanta, Ga., for Sanders, Gulf, TWA.

W. Michael Mayock, Los Angeles, Cal., for Walter.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Donald B. Nicholson, Philip Wilens, Chief, Dept. of Justice, Govt. Regulations & Labor Sec., Crim. Div., Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

AINSWORTH, Circuit Judge:

Arthur Sanders, William Walter, Gulf Coast News Agency, Inc. ("Gulf Coast News") and Trans World America, Inc. ("TWA") appeal their convictions under 18 U.S.C. § 371 for conspiring knowingly to use a common carrier to ship obscene materials interstate, in violation of 18 U.S.C. § 1462, and knowingly to transport obscene matter interstate for the purpose of sale or distribution, in violation of 18 U.S.C. § 1465. Sanders, Walter and Gulf Coast News also challenge their convictions for substantive violations of sections 1462 and 1465. ¹ Appellants all allege an unconstitutional search and seizure and attack the district court's jury instructions on obscenity; appellant Walter further contends that he "was not shown to possess the requisite scienter." We find these assertions to be without merit and therefore affirm the convictions.

I. Facts

According to the testimony at trial, on September 15, 1975, Richard Larson, the manager of appellant Gulf Coast News, located in St. Petersburg, Florida, ordered an employee to deliver 12 cartons, containing a series of 8 mm. films entitled "David's Boys," ² to Greyhound Bus Package Express in St. Petersburg for shipment to Atlanta. The packages had a nonexistent return address and named a fictitious corporation, "D and L Distributors," as shipper. Described as containing printed matter, they were sent on a "will call" basis to "Leggs, Inc.," another fictitious company. "Legs" was the nickname of a female employee at appellant TWA's Atlanta headquarters. When the cartons reached Atlanta, Greyhound forwarded them to a branch station located near L'Eggs Products, Inc. ("L'Eggs"), a manufacturer of women's hosiery and regular customer of Greyhound Package Express. After Greyhound informed L'Eggs of the shipment, Michael Horton, a L'Eggs Products employee, came to the terminal, opened one of the cartons and discovered that it contained sexually explicit movies. Horton returned to the L'Eggs office and described the package's contents to a superior, William Fox. Concerned that his company might be implicated in the transportation of pornographic films, Fox drove to the Greyhound station and brought the 12 cartons to the L'Eggs office. He and several other employees opened all the packages and found individual boxes of film. The top of each film box showed the name "David's Boys" and a drawing of two nude males embracing and kissing; on the back of each were the title of the individual movie and a detailed description, in explicit terms, of the bizarre homosexual acts depicted in the film. Fox then telephoned the FBI, explained the nature of the films and asked "them to come out and take the materials away." The FBI procured the films on October 1, 1975, and subsequently viewed them on a projector at its offices. No warrant was obtained.

Appellants Walter and Sanders, who jointly operated appellants TWA and Gulf Coast News, were indicted along with both corporations under 18 U.S.C. § 371 on one count of conspiring knowingly to use a common carrier to ship obscene materials interstate, in violation of 18 U.S.C. § 1462, and knowingly to transport obscene matter interstate for the purpose of sale and distribution, in violation of 18 U.S.C. § 1465. Gulf Coast News, Walter and Sanders were also charged with five counts of substantive violations of section 1462 and five substantive violations of section 1465. ³ The jury convicted TWA of conspiracy and returned guilty verdicts as to Walter, Sanders and Gulf Coast News on all eleven counts. The district court fined TWA $10,000, Gulf Coast News $33,000 and sentenced both Walter and Sanders to three years in prison on each count, to run concurrently.

II. The Constitutionality of the Search and Seizure

Appellants first urge that the district court committed reversible error in failing to suppress the five films admitted in evidence at trial. Since appellants TWA and Gulf made no pretrial motion to suppress, they cannot raise this issue on appeal. United States v. Bush, 5 Cir., 1978, 582 F.2d 1016, 1018. Though appellants Sanders and Walter each made a timely motion to suppress and return the films, the district court sought to determine at the outset whether they had standing to challenge the constitutionality of the search and seizure. To establish such standing under traditional Fourth Amendment analysis, a defendant must either show presence on the searched premises at the time of search, allege a proprietary or possessory interest in the premises or objects searched or be charged with an offense that includes as an essential element possession of the seized evidence at the time of the contested search and seizure. See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); United States v. Hunt, 5 Cir., 1974, 505 F.2d 931, 939-40. "Generally, a defendant satisfies the standing requirement if he has an adequate possessory interest in the place or object searched to give rise to a reasonable expectation of privacy." United States v. Hunt, supra, 505 F.2d at 938.

In denying appellants' suppression motion, the district judge held that "shipping or causing or suffering to be shipped by a common carrier . . . with a fictitious name given for the shipper as well as the fictitious name given for the consignee or addressee, amounts to a relinquishment or abandonment of any reasonable expectation of privacy. Or, stated another way, it seems to me that it was reasonably foreseeable that what actually occurred would occur. That is to say, that there was substantial likelihood that the material would be misdelivered and fall into the hands of some third party, as actually happened in this case, where it would be opened and its privacy, if it had any, invaded." There is merit in the district court's conclusion. However, the Supreme Court has recently "dispens(ed) with the rubric of standing . . . by frankly recognizing that this aspect of the analysis belongs more properly under the heading of substantive Fourth Amendment doctrine," Rakas v. Illinois, --- U.S. ----, 99 S.Ct. 421, 429, 58 L.Ed.2d 387 (1978) so we will focus "on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Id., --- U.S. at ----, 99 S.Ct. at 428.

A. The Search by L'Eggs Products Employees

Appellants Sanders and Walter argue that the L'Eggs Products employees, in opening the 12 cartons and examining their contents without a warrant, conducted an unconstitutional search. The Fourth Amendment's warrant requirement, of course, is intended solely "as a restraint upon the activities of sovereign authority," Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921), and "a search . . . conducted by a private individual for purely private reasons, . . . does not fall within the protective ambit of the Fourth Amendment." United States v. Lamar, 5 Cir., 1977, 545 F.2d 488, 489-90; United States v. Jones, 5 Cir., 1972, 457 F.2d 697, 699; Barnes v. United States, 5 Cir., 1967, 373 F.2d 517, 518. However, if under the circumstances of the case the private party "acted as an 'instrument' or 'agent' of the government," the ostensibly "private" search must meet the amendment's standards. United States v. Bomengo, 5 Cir., 1978, 580 F.2d 173, 175. See Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949). Before the L'Eggs Products employees ever contacted the FBI, they had on their own initiative taken the shipment of films from the bus terminal, opened the cartons, examined the individual film boxes and ascertained the nature of the films. Since "there is no indication in the record" that in so doing the L'Eggs employees "acted at the behest or suggestion, with the aid, advice or encouragement, or under the direction or influence of the F.B.I.," we conclude that these activities constituted a private search, beyond the scope of the Fourth Amendment. United States v. Clegg, 5 Cir., 1975, 509 F.2d 605, 609.

B. FBI Acceptance of the Films

Nevertheless, Sanders and Walter contend that the FBI unconstitutionally seized the films, by accepting them from the L'Eggs employees without obtaining a warrant. In making this assertion, they rely principally on the Eighth Circuit's decision in United States v. Kelly, 1976, 529 F.2d 1365. There, an employee of a common carrier discovered that a ripped-open carton of goods contained sexually explicit books and magazines and called the FBI, which sent an agent who examined several of the magazines and retained samples, without obtaining a warrant. Although the Kelly court said that the common carrier's search was private, it held that the Government's subsequent acceptance of the fruits constituted a seizure requiring a warrant, "unless there are special circumstances which excuse compliance with the . . . warrant requirement," decided that no exception to that requirement applied and concluded that the warrantless "seizure" was "so unreasonable as to necessitate the operation of the exclusionary rule." Id. at 1371.

The result in Kelly conflicts with the reasoning implicit in a long line of private search...