United States v. Marks

• Decision Date: 05 October 1973
• Docket Number: No. 11057.,11057.
• Citation: 364 F. Supp. 1022
• Parties: UNITED STATES of America, Plaintiff, v. Stanley MARKS dba Cinema X Theatre et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

364 F. Supp. 1022

UNITED STATES of America, Plaintiff, v. Stanley MARKS dba Cinema X Theatre et al., Defendants.

No. 11057.

United States District Court, E. D. Kentucky, Covington Division.

October 5, 1973.

COPYRIGHT MATERIAL OMITTED

Louis DeFalaise, Asst. U. S. Atty., Lexington, Ky., for plaintiff.

Andrew Dennison, Cincinnati, Ohio, Charles J. Schear, Newport, Ky., for Marks.

Robert Eugene Smith, Baltimore, Md., Gilbert Deitch, Atlanta, Ga., for all other defendants.

MEMORANDUM

SWINFORD, District Judge.

The court is confronted with eight motions filed by the defendants: (1) motion by the defendant Marks to dismiss; (2) motion by Marks for the return and suppression of confiscated property; (3) motion by all defendants (except Marks) to dismiss; (4) motion by all defendants (except Marks) for discovery; (5) motion by all defendants for a bill of particulars; (6) motion by all defendants for inspection of grand jury minutes; (7) motion by all defendants for production of evidence inconsistent with guilt; (8) motion by Marks to join with the other defendants in their motions for evidence inconsistent with guilt; inspection of grand jury minutes; bill of particulars; discovery; and dismissal.

The Government and other defendants have offered no objection to Marks' request for consolidation; accordingly, an order will be entered sustaining that motion.

Motion to Suppress

This motion, filed only on behalf of Marks, seeks the suppression and return of the films generative of this prosecution. The defendant assails the scope and manner of inquiry utilized prior to seizure as well as the First Amendment deprivations allegedly occasioned by the confiscation.

This court is unable to discern any defect in the Magistrate's hearing that would justify the relief sought. Much is made of the failure of the Magistrate to actually view the films in question; instead, he was presented affidavits describing the factual occurrences portrayed on the screen. This method, which was accepted for an initial seizure in Merritt v. Lewis, E.D.Cal., 309 F. Supp. 1249, 1253 (1970), satisfies the court that the issuing officer was adequately apprised of the contents of the challenged films, while avoiding needless technicality and insuring a pragmatic approach to the issuance of a warrant. See Coury v. United States, 6th Cir., 426 F.2d 1354 (1970); United States v. Kidd, 6th Cir., 407 F.2d 1316 (1969). The accounts used herein are in no way comparable to the conclusory affidavits condemned in Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L. Ed.2d 1127 (1961) and Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968). The procedure employed clearly allowed the Magistrate to "focus searchingly on the question of obscenity," as required by Marcus, supra, 367 U.S. at 732, 81 S.Ct. at 1716.

The defendant claims that the Government's failure to return the seized materials results in a prior restraint upon the exercise of constitutional guarantees. This issue was resolved against the defendants by order of this court dated April 6, 1973. Further, the accused is mistaken in his argument that Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), mandates a return of confiscated material where there is danger of a prior restraint on communicative rights; Heller attempted to balance prosecutorial interests against the possible censorial effect of seizing items not yet ruled obscene:

"(O)n a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned." Id. at 492, 93 S.Ct. at 2795.

The record in this case does not reveal either a demonstration by the defendant of the unavailability of copies, or a request for permission to duplicate the movies seized. It is therefore apparent that any First Amendment dilution which occurred through the seizure was the result of the defendants' failure to satisfy the prerequisites outlined in Heller.

The claim that the absence of a constitutional standard of obscenity prior to Miller rendered the Magistrate's proceedings defective is discussed and rejected in connection with the motion to dismiss; Miller forged no new standard, but merely clarified certain ambiguities present in the tests devised earlier.

The defendant's motion to suppress will be overruled.

Motion to Dismiss

The court is not persuaded by the numerous theories for dismissal propounded by the defendants; although it is admittedly difficult to frame cohesive responses to the multitude of propositions forwarded, the arguments may be roughly divided into those attacking the constitutionality of 18 U.S.C. § 1465 and those challenging the indictment itself.

The assailed statute proscribes the interstate transportation for sale of the following items:

"Any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both." 18 U.S.C. § 1465.

It is well understood that obscenity is undeserving of constitutional protection, Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); rather, the defendants' attack relates primarily to definitional terms utilized in the statute. This criticism is unwarranted in view of Roth v. United States, supra, and United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), which rebuked challenges leveled against substantially identical language in 18 U.S.C. §§ 1461 and 1462. See also United States v. Cote, 5th Cir., 470 F.2d 755 (1972). A statutory provision will not suffer constitutional invalidation merely because of a lack of complete precision. The fact that certain conduct may fall on either side of legislative terms descriptive of an offense is not fatal so long as an adequate warning of sanctioned activity is conveyed. Roth v. United States, supra, 354 U.S. at 491-492, 77 S.Ct. 1304. The Court in Nash v. United States, 229 U.S. 373, 377, 33 S.Ct 780, 781, 57 L.Ed. 1232 (1913), recognized that many equivocal acts require a forecast of a jury's subsequent reactions:

"(T)he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or short imprisonment . . . he may incur the penalty of death."

See also United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930).

The constitutionality of 18 U.S. C. § 1465 is not weakened by the Supreme Court decisions in Miller v. California, supra, and accompanying cases. Although these opinions did clarify the earlier disputes surrounding the obscenity question, it would be simplistic to abandon all earlier attempts in the same direction. The impropriety of such an action is revealed in United States v. Orito, supra, affirming the constitutionality of 18 U.S.C. § 1462, and United States v. 12 200 foot reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), where the Court indicated that any ambiguity in 19 U.S.C. § 1305 could be resolved by an interpretation consistent with current judicial reasoning.

It is also argued that since Miller formulated a new test of obscenity, prosecution of these defendants for conduct prior to that opinion would invoke the constitutional proscription of ex post facto culpability. This position misapprehends both Miller and the Ex Post Facto Clause.

It should initially be noted that the Ex Post Facto Clause is intended to apply to statutory enactments, not judicial construction. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L. Ed. 969 (1915); United States ex rel. Almeida v. Rundle, 3d Cir., 383 F.2d 421 (1967), cert. denied 393 U.S. 863, 89 S. Ct. 144, 21 L.Ed.2d 131 (1968). Although Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), did hold that a retroactive application of a court interpretation may offend the Due Process Clause, it is evident that the factors present in the obscenity area render that case easily distinguishable; the Bouie holding should be applied only to decisions which are "`unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue . . .'". Id. at 354, 84 S.Ct. at 1703. As admitted by the defendant, the previous uncertainty in the realm of obscenity has only been settled by the recent Supreme Court decisions. The Miller group did not create a new definition of illegal conduct, but merely clarified earlier concepts of obscenity of which the defendants were constructively aware. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606 (1896); Nash v. United States, supra; United States v. Wurzbach, supra. Further, the Court's action in remanding Miller and its accompanying cases to the lower courts for re-evaluation in light of the clarified standards intimates that the use of the Miller standard in the case at bar is entirely proper; prospective application would have been decreed if constitutional violation had been feared.

The defendants cite in support of this argument United States v. Lang, C.D. Cal., 361 F.Supp. 380 (1973), where a prosecution founded on federal obscenity laws was dismissed in response to the alterations wrought by Miller. This court cannot agree with that decision and notes the four contrary decisions cited by the Government: United States v. Sians, 7th Cir., 481 F.2d 1406 (1973); United States v. Wasserman, W.D.Tex., No. A-72-CR-71 (July 26,...