United States v. Marti

• Decision Date: 03 February 1970
• Docket Number: 33473.,No. 237-238,Dockets 33472,237-238
• Citation: 421 F.2d 1263
• Parties: UNITED STATES of America, Appellee, v. Luis MARTI and Lou Saks, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

421 F.2d 1263 (1970)

UNITED STATES of America, Appellee, v. Luis MARTI and Lou Saks, Appellants.

Nos. 237-238, Dockets 33472, 33473.

United States Court of Appeals, Second Circuit.

Argued November 6, 1969.

Decided February 3, 1970.

Raymond Bergan, Washington, D. C. (Edward Bennett Williams, Patrick M. Wall, Washington, D. C., on the brief), for appellant Marti.

Gustave Newman, Brooklyn, N. Y. (Evseroff, Newman & Sonenshine, Brooklyn, N. Y.), for appellant Saks.

James T. B. Tripp, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., Southern District of New York, John E. Sprizzo, Asst. U. S. Atty, on the brief), for appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Appellant Marti was indicted along with nine other defendants on two counts of conspiracy to transport obscene materials in interstate commerce for the purpose of sale and distribution, in violation of 18 U.S.C. § 1465 (1966): (1) for transporting obscene still photographs, and (2) for transporting obscene films. Appellant Saks was indicted on the second count alone. Appellants were tried together before a jury in the United States District Court for the Southern District of New York (the other defendants either became fugitives, pleaded guilty, or received separate trials) and were found guilty on all counts. On March 4, 1969, Judge Tenney sentenced them to two years imprisonment on each count, Marti's sentence to run concurrently. Appellants attack their convictions on several grounds. We hold that the convictions must be reversed since they were obtained through the admission into evidence of materials seized pursuant to unconstitutionally general search warrants.

The relevant facts are quite simple and the sufficiency of the evidence is not in dispute. In early 1966 appellants Marti and Saks both had obscene color films processed by co-defendant Gentile and the transactions were carried out through an intermediary, co-defendant Pelletier. The films depicted various nude males and females engaged in natural and unnatural sexual acts; the obscenity of the films and still photographs is conceded. When Gentile could no longer process films in mid-1966 due to the closing of the laboratories he used, alternate arrangements were made and still photographs were processed by co-defendant Stewart Laboratories. Both Pelletier and Gentile served as intermediaries in these transactions between Marti and the co-defendant agents of Stewart Laboratories. Marketing of the films and photographs was carried out by appellants personally and by co-defendants Goldman and the Delmars (a husband-and-wife team). The interstate nature of the scheme was evidenced by substantial sales in New York during 1965 and 1966 to one Brauer of Baltimore, Maryland, who resold the materials in Maryland at a handsome profit.

I.

Appellants first contend that they were deprived of their rights of confrontation of witnesses and due process under the Sixth and Fifth Amendments when the court below prevented defense counsel from cross-examining a principal government witness, Pelletier, as to his residence. When asked on cross-examination where he lived, Pelletier gave the nonspecific answer, "In Queens." When defense counsel asked him where in Queens he lived, the prosecutor asked for a side bar conference and the following colloquy occurred:

"Mr. Adams: Your Honor, I would request that the address of this witness not be disclosed. I would be happy to furnish to counsel the address if they have any particular purpose, but I do not wish the defendants in this case to know where Mr. Pelletier is living.

The Court: I assume that is agreeable to both counsel.

Mr. Evseroff: I would like to state for the record that I think it is highly improper. * * *

The Court: Well, if in any way, if I permit the question to be answered, I receive any word of any communication being made, I will hold you gentlemen defense attorneys responsible.

Mr. Bobick: I don\'t know how you can hold us responsible.

Mr. Evseroff: Judge —

The Court: That is all."

The cross-examination then continued and Pelletier never testified as to his address. Defense counsel never sought private communication of Pelletier's address from the prosecutor pursuant to his apparent offer in the colloquy.

At the outset, the government argues that the court here did not prevent the defense from asking Pelletier his address since it conditionally allowed the question to be answered if counsel would be responsible for "any communication." It would appear, however, that the court was warning defense counsel that if Pelletier testified as to his address, counsel would be held responsible if Pelletier were harassed as a result of his revealing his address in open court. Since counsel could not insure that Pelletier or his family would not be harassed, it was perhaps not unreasonable for them to view as too costly the court's condition on allowing Pelletier to answer.

We must therefore consider whether appellants' constitutional rights were infringed by the trial court's action which prevented counsel from eliciting Pelletier's address on cross-examination. Appellants rely on Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In Smith a prosecution witness testified under a false name and the defense was prevented from eliciting the true name and address on cross-examination. The Supreme Court overturned the conviction on the ground that the name and address of a witness are necessary for in-and-out-of-court investigation of the witness. In Alford, the defense was prevented from obtaining the address of a prosecution witness on cross-examination; the Court reversed the conviction on the ground that asking the address of a witness is proper even if only for exploratory purposes or to put the witness into his proper environment. In Alford itself, however, there was reason for the defense counsel to believe that the witness was presently in custody, a fact which, if revealed in open court, would have had great impact on the jury's evaluation of the witness' testimony.

There are two central interests which are strongly safeguarded by Smith and Alford, neither of which seem to be involved in the instant case. First, the defense needs testimony as to a witness' address on cross-examination so that the defense can obtain this information which may be helpful in investigating the witness out of court or in further cross-examination. However, in the present case the prosecution offered to communicate Pelletier's address privately to defense counsel, so that the defense cannot claim that it was prejudiced by being unable to obtain Pelletier's address. In Smith, although defense counsel knew the witness from previous experience, there was no indication that counsel knew the witness' true name or address. See United States v. Garafolo, 385 F.2d 200 (7 Cir. 1967), vacated, 390 U.S. 144, 88 S.Ct. 841, 19 L.Ed.2d 970 (1968), rev'd on remand, 396 F.2d 952 (7 Cir. 1968). Here, the inability to elicit Pelletier's address on cross-examination cannot have prejudiced any investigation of Pelletier, either in or out of court. Cf. United States v. Bennett, 409 F.2d 888 (2d Cir. 1969). No claim is made here that any investigation of Pelletier would have been somehow less thorough if only counsel knew his address (as the prosecutor offered) then it would have been if both counsel and appellants knew it (as they would have if Pelletier gave his address in open court). In fact, in view of counsel's failure to ask the prosecutor for the address privately, it is unlikely the defense was interested in the address for investigative purposes.

Second, the defense may need the witness to reveal his address in court because knowledge of the address by the jury might be important to its deliberations as to the witness' credibility or his knowledgeability. Thus, in Alford, supra, the possible revelation in open court that the witness was residing in jail would have been pertinent to the evaluation of his credibility and to the question of whether the witness had been promised anything for his testimony. No such concern that the jury needed to know Pelletier's address is present in this case. Indeed, the type of residence, the part of town it was in, and the monthly rent were revealed on cross-examination. Therefore, the jury's knowledge of the specific street address would add nothing to its deliberations on Pelletier's testimony.

We agree that the government should come forward with its reason for wanting to prevent the revelation in open court of the witness' address, see Smith, supra, 390 U.S. at 134, 88 S.Ct. 748 (Mr. Justice White, concurring); the reason may be that the answer may subject the witness to reprisals or that the question is being used to humiliate or annoy the witness. See Alford, supra, 282 U.S. at 694, 51 S.Ct. 218. But the failure of the prosecutor in this case to come forward with his reason is not enough to warrant reversal, especially in the light of defense counsel's apparent disinterest in knowing the address. Although counsel strongly objected to the court's ruling, they never challenged the prosecutor's motives nor accepted his offer of private communication. Therefore, no constitutional rights of appellants were infringed by this restriction on Pelletier's cross-examination.

II.

Appellants next attack their convictions on the ground that evidence was obtained pursuant to search warrants which were too general. The three warrants in question were issued by Judge Basel of the New York City Criminal Court on September 29, 1967 upon the affidavit of New York Detective Romandetta. They directed any New York City peace officer to search a blue Chevrolet Saks had been seen driving, and two premises, 31-07 and 31-13 21st Street in Queens County, as well as the person of Saks and anyone else in...