U.S. v. Sherpix, Inc.

• Decision Date: 15 May 1975
• Docket Number: Nos. 74-1382,74-1383,s. 74-1382
• Citation: 168 U.S.App.D.C. 121,512 F.2d 1361
• Parties: UNITED STATES of America v. SHERPIX, INC., Appellant. UNITED STATES of America v. Louis K. SHER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1361

512 F.2d 1361

168 U.S.App.D.C. 121

UNITED STATES of America v. SHERPIX, INC., Appellant.

UNITED STATES of America v. Louis K. SHER, Appellant.

Nos. 74-1382, 74-1383.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 13, 1974.

Decided May 15, 1975.

Edmund C. Grainger, Jr., and Ralph J. Schwarz, Jr., New York City, for appellants.

Steven R. Schaars, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief for appellee.

Before MOORE, ^* Senior Circuit Judge for the Second Circuit, and MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

In a five-count indictment filed March 23, 1973, appellants, Sherpix, Inc., and its president Louis K. Sher, and seven codefendants, ¹ were charged with violating federal and District of Columbia obscenity laws in connection with the distribution and exhibition of the film "Hot Circuit." The first trial commenced September 24, 1973, and ended in a mistrial due to a hung jury. At retrial in December 1973, the Government dismissed one count of the indictment which charged unlawful advertising of an obscene film in violation of D.C. Code § 22-2001. (Tr. 324, 333) The court also granted a defense motion for dismissal of a count charging interstate shipment of an obscene film by common carrier, 18 U.S.C. § 1462. (Tr. 503, 523) The remaining three counts submitted to the jury charged: (1) conspiracy during the period from December 1, 1971, to November 16, 1972, to violate federal and D.C. obscenity laws (18 U.S.C. § 371); (2) interstate shipment of an obscene film from New Jersey to the District of Columbia on October 2, 1972, for purposes of sale or distribution (18 U.S.C. § 1465); and (3) knowingly presenting that film in the District of Columbia from October 4 to November 2, 1972 (D.C. Code § 22-2001). Each appellant was found guilty of all counts. Sher was given a suspended sentence and three years probation, and Sherpix was fined a total of $6,000. These appeals followed. Because we find that the District Court used an improper test in instructing the jury on the question of the obscenity of the film, we reverse.

I.

Appellants were convicted for offenses committed between December 1, 1971, and November 16, 1972, under an indictment filed March 23, 1973. During this period, the Roth-Memoirs ² definition of "obscenity" was the applicable standard to be used in evaluating material which was alleged to be obscene. Under that test, material was obscene if:

(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it confronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

383 U.S. at 418, 86 S.Ct. at 977 (emphasis added). On June 21, 1973, between the filing of the instant indictment and appellants' trials, the Supreme Court decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). After Miller, material is obscene if:

(a) ... "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ...; (b) ... the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24, 93 S.Ct. at 2615 (emphasis added).

The District Court determined that appellant's conduct was to be judged according to the Miller standards and instructed the jury accordingly. Appellants argue that this retroactive application of Miller to offenses committed pre-Miller denied them due process. Although the constitutional prohibition on ex post facto laws ³ does not apply directly to this situation, ⁴ the due process clause imposes a similar prohibition where the law is modified by judicial construction. See Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 86 L.Ed. 226 (1941).

As to both the second and third counts, the jury was told that an essential element of the offense was:

That the film, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Tr. 706, 712. This same finding was of course necessary before appellants could be found guilty of conspiracy to violate the obscenity statutes under the first count. The court also instructed:

It is for you to determine whether the film in issue in this case is of such value to society. If you find that it lacks serious literary, artistic, political, or scientific value, and that the other elements have been met, you may find the film obscene.

Tr. 710. These excerpts clearly show the court was instructing the jury under Miller test (c).

The Government argued that certain portions of the jury instructions were sufficient to also charge Roth-Memoirs test (c). For example, the court told the jury:

The fact, if it is a fact, that a film deals with sex does not mean that it cannot have value to society.

Such material can have social importance if it portrays sex in a manner that advocates ideas or that has serious literary, scientific, or artistic value.

Tr. 710. Regardless of the meaning this language may have conveyed to the jury, it clearly could not have the impact of a charge using the "utterly without redeeming social value" terminology of Roth-Memoirs. We therefore conclude that the instructions given did not adequately present to the jury the essential elements required by (c) of that test. Cf. United States v. Hill, 500 F.2d 733 (5th Cir. 1974). ⁵

It is clear that Miller test (c) is an expansion of the area of activity which can potentially result in criminal liability. In fact, this test was expressly adopted to ease the Government's burden of proving obscenity. See 413 U.S. at 22, 93 S.Ct. 2607. It is a fundamental principle that a person must have notice of what activity is prohibited before he may be held criminally liable for his actions.

The fundamental principle that "the required criminal law must have existed when the conduct in issue occurred," ... must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue," it must not be given retroactive effect.

Bouie v. City of Columbia, supra, 378 U.S. at 354, 84 S.Ct. at 1703 (citations omitted). At the times appellants distributed and exhibited the film, they could expect to escape conviction unless a jury concluded that the film was "utterly without redeeming social value." Nothing existed to give them notice that their activities were also criminal if the film merely "lacked serious literary, artistic, political, or scientific value." Since appellants were not afforded the opportunity to conform their behavior to the law as subsequently construed, due process bars the retroactive application of Miller test (c), and the instant convictions must be reversed.

The two circuits which have considered this issue have reached similar conclusions regarding the retroactivity of the Miller tests. See United States v. Wasserman, 504 F.2d 1012 (5th Cir. 1974); United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974). In addition, the correctness of this result was implied in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), where the Court held that a review of a pre-Miller conviction must give the appellant the benefit of any more favorable elements of the Miller tests, but reviewed the remainder of the conviction under the Roth-Memoirs tests. A similar analysis must take place in the present case. On retrial, the jury must be instructed under Miller as to those elements of the offense for which Miller is beneficial to appellants' case. The remainder of the instructions must conform to the requirements of Roth-Memoirs. In essence, a conviction can be obtained only if the material can be found to be obscene under both tests. ⁶

II.

We next turn to a consideration of those issues which are not mooted by our determination that a retrial of appellants is necessary.

A. Conspiracy by Sherpix : The first count of the indictment charges:

Commencing on or about December 1, 1971, and continuing to on or about November 16, 1972, within the District of Columbia and elsewhere, Louis K. Sher, defendant, and Saul Shiffrin, a co-conspirator only, and the original defendants, and co-conspirators, Paul Glickler, Richard P. Lerner and Harry Brandt Booking Co., Inc. unlawfully, willfully and knowingly did conspire, combine, confederate and agree together, with each other and others, and through their use of Acorn Films, Inc., Sherpix, Inc., and Trans-Lux Theatre Corporation, to commit offenses against the United States by transporting and causing to be transported in interstate commerce by common carrier and for the purpose of sale, distribution and presentment, on obscene, lewd, lascivious and filthy motion picture ....

App. 21a-22a (emphasis added). At trial, Sherpix, Inc. (the corporation) moved to dismiss this count as to it on the ground that the indictment did not assert that Sherpix had conspired with anyone and hence did not charge it with the commission of any crime. (Tr. 510-11). However, the trial court denied the motion, and Sherpix was convicted and sentenced under this count.

Both at trial and on appeal, the Government argued that the conspiracy count could be sustained against Sherpix on the grounds that a corporation is criminally responsible for the acts of its...