U.S. v. Sherman

• Decision Date: 22 June 1978
• Docket Number: Nos. 76-2119,s. 76-2119
• Parties: , 1978-81 Copr.L.Dec. 25,021 UNITED STATES of America, Plaintiff-Appellee, v. Leigh Randolph SHERMAN, a/k/a Randy Sherman, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Milton SHERMAN, a/k/a Mickey Sherman, a/k/a Joe Martin, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Martin CERASE, d/b/a Cisum Co., Cisum, Inc., Defendant-Appellant. to 76-2121.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 292

576 F.2d 292

200 U.S.P.Q. 561, 1978-81 Copr.L.Dec. 25,021

UNITED STATES of America, Plaintiff-Appellee, v. Leigh Randolph SHERMAN, a/k/a Randy Sherman, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Milton SHERMAN, a/k/a Mickey Sherman, a/k/a Joe Martin,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Martin CERASE, d/b/a Cisum Co., Cisum, Inc.,

Defendant-Appellant.

Nos. 76-2119 to 76-2121.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 24, 1978.

Decided May 19, 1978.

Rehearing Denied June 22, 1978.

John Romig Smith of Oyler & Smith, Oklahoma City, Okl., for defendants-appellants Leigh Randolph Sherman and Milton Sherman.

Herbert H. Galchinsky of Grossman, Galchinsky, Silverstein & Grossman, Denver, Colo., for defendant-appellant Anthony Martin Cerase.

John E. Green, Acting U. S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Leigh Randolph "Randy" Sherman, Milton Sherman and Anthony Martin Cerase were each convicted by a jury on one count of conspiracy to violate copyrights of sound recordings (under 18 U.S.C. § 371) and eighteen counts of specific infringement of copyrighted sound recordings (under 17 U.S.C. §§ 1(f) and 104). On appeal they contend that the trial court erred: 1) in denying motions to suppress evidence obtained in a search conducted pursuant to a search warrant; 2) in refusing to require the government to disclose the name of a confidential informant named in the affidavit used to obtain the search warrant; 3) in instructing the jury that copyrights introduced at the trial were valid as a matter of law; and 4) in denying defendants' motions for acquittal based upon insufficiency of the evidence.

The statutes under which defendants were convicted prohibit willfully duplicating for profit copyrighted sound recordings, without the consent of the copyright holder. The government alleged that the defendants conspired together and manufactured and distributed, on a nationwide basis, 8-track reproductions of musical compositions which they pirated from records of such famous singers as John Denver, Glenn Campbell, Bob Dylan and Loretta Lynn.

The evidence was undisputed that at least the musical tapes were manufactured under the supervision of defendant Cerase, in a building in Oklahoma City owned by defendant Randy Sherman. Many of these tapes were sold by defendant Milton Sherman operating under the name Joe Martin.

The tapes were sold as being "sound-a-likes" or simulations of the famous artist's performance; that is, they purported to be imitations of John Denver, in one example, by someone else trying to sing as Denver would. The evidence of the Government, believed by the jury, is that these reproductions were copied from real John Denver and other artists' copyrighted records, and hence were not "sound-a-likes" or simulations at all.

We will discuss the evidence in detail below where required to consider the specific contentions of the parties in the appeal.

I

The defendants assert that the evidence seized at One Northeast 7th Street, under authority of a search warrant, should be suppressed on the grounds the supporting affidavit fails to comport with the standards required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1963) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and, in any event, the facts recited in the affidavit are too remote in time to justify a finding of probable cause at the time the warrant was issued. Where reliance is upon an informant Aguilar requires the magistrate to be advised of some of the circumstances from which it is concluded crimes are occurring at the situs of the proposed search, and the affiant's basis for believing the informant is trustworthy. If the affidavit is defective by these standards, Spinelli permits the issuing magistrate to consider the other allegations in the application corroborating the informant's tip to determine whether the reliability demanded sufficiently exists to find probable cause.

In the affidavit submitted to the judge to support the application for a warrant to search the premises at One Northeast 7th in Oklahoma City, reference was made to five confidential informants. The agent made no express statement as to any of them that he believed they were reliable and giving facts supporting that belief. But as to confidential informants 2 and 4 the affidavit sets forth additional facts demonstrating support of the reliability of those statements. And the affidavit contains other information gathered by the agents or from sources who are identified which has the effect of supporting the allegations made by the confidential informants.

Thus confidential source 2 advised of his contact of "Joe Martin" at a particular telephone number, receipt of advertising containing a particular name and address from which to order. That source advised that he purchased tapes from the Cisum Co. at that address, identified the tapes, and said he took them for testing by United Artists Records. Then the affidavit goes on to report that FBI Special Agent Altpeter received information from the Director of Recording of United Artists Records that two of the songs were "identical to songs on copyrighted United Artists' albums with no noticeable alterations, overdubbing, or speed changes." The affidavit states the copyrights were verified, and advice had been obtained that defendants were not licensed to duplicate or manufacture the songs.

Various statements in the affidavit link defendants and the One Northeast 7th address to the tapes secured through confidential sources 2 and 4, and suggest that place as the source of the manufacturing operation. This includes FBI Agent DeWitt's checking of postage and address listings, and agent surveillance.

The supporting evidence presented to the judge who issued the warrant was significantly more supportive of the warrant than that struck down in Spinelli. We do not believe the affidavit must recite why it is believed that the findings of the United Artists Records' Director of Recording are reliable when he is identified. The judge is to apply common sense in his reading of the affidavit. Spinelli also states, 410 U.S. at 419, 89 S.Ct. at 590-91:

In holding as we have done, we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, (18 L.Ed.2d 62) (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, (13 L.Ed.2d 684) (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736, (4 L.Ed.2d 697) (1960). . . .

Defendants' related contention is that the facts recited in the affidavit are too remote in time to justify a finding of probable cause when the warrant was issued. Some of the times recited are remote and we believe essentially irrelevant. But most were within the time span of the conspiracy alleged. In response to a similar argument this Court held the nature of the activity must be taken into consideration, and when the activity is of a protracted and continuous nature the passage of time diminishes in significance. United States v. Johnson, 461 F.2d 285 (10th Cir. 1972). The allegations in the affidavit indicate a manufacturing and distributing operation continuous in nature. There was no error in denying defendant's motion to suppress.

II

It is argued that the name of the person identified as confidential source No. 5 in the affidavit used to obtain the search warrant must be disclosed, as that person claimed to be present when a criminal act occurred. Under Garcia v. United States, 373 F.2d 806 (10th Cir. 1967) the defendant may obtain the identity of an informer if his testimony might be relevant to defendant's case and justice would be best served by disclosure.

We do not read the statement in the affidavit as necessarily indicating that No. 5 personally observed criminal activity. That paragraph states merely that, "source advised that the premises had been used for the manufacture of bootleg tapes in violation of copyright laws," and that on the particular day he or she was on the premises various described items of tape producing equipment were there. In any event defendants presented no evidence to support a finding disclosure would be helpful to their defense. The facts furnished by the source were cumulative to information already alleged in the affidavit by the government. The informant's knowledge was unnecessary to the presentation of the government's case. Under these circumstances there was no error in the denial of the request.

III

The defendants argue that the trial judge erred in instructing the jury that the copyrights were valid as a matter of law, and in not submitting that question to the jury. At trial defendants stipulated to the validity of several of the copyrights in question, and this stipulation is binding upon them. United States v. Harding, 475 F.2d 480, 484 (10th Cir. 1973). At the time of the instruction no objection was made by any of the defendants. In view of this, the defendants' stipulation to seven of the eighteen copyrights and their failure to present any evidence to contradict the prima facie validity of the copyright certificates introduced on the remaining counts,...