United States v. Rubin

• Decision Date: 07 May 1970
• Docket Number: No. 3989-CD.,3989-CD.
• Citation: 312 F. Supp. 950
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Herbert RUBIN, Defendant.

312 F. Supp. 950

UNITED STATES of America, Plaintiff, v. Herbert RUBIN, Defendant.

No. 3989-CD.

United States District Court, C. D. California.

May 7, 1970.

Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief Criminal Division, Theodore E. Orliss, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Douglas Dalton and Robert Payson, Beverly Hills, Cal., for defendant.

MEMORANDUM OPINION

HAUK, District Judge.

Defendant Herbert Rubin is charged in a one count indictment with a violation of 18 U.S.C. § 1462¹ for knowingly having used American Airlines, a common carrier, to transport from New York City to Los Angeles International Airport six cartons containing 526 black and white reels of motion picture films "depicting men and women in various natural and unnatural acts of sexual intercourse and which films were obscene, lewd, lascivious, and filthy" within the meaning of § 1462.

After a lengthy evidentiary hearing on Defendant's motion, this Court suppressed four of the cartons, holding that they had been obtained pursuant to an illegal search and seizure because agents of the F.B.I., without a search warrant, had participated in the opening of these four cartons. Corngold v. United States, 367 F.2d 1 (9th Cir., 1966). Defendant's motion to suppress the other two cartons was denied because these packages had been opened by employees of American Airlines without the participation of any Federal agents. Gold v. United States, 378 F.2d 588 (9th Cir., 1967).

Thereafter, trial commenced and the two cartons with their reels of film were introduced in evidence, both Defendant and Government stipulating that the films were obscene within the meaning of 18 U.S.C. § 1462. After five days of non-jury trial, Defendant having waived his Constitutional right to a jury trial and having waived Special Findings under Fed.R.Crim.P. 23(c)², this Court took the case under submission and requested both sides to submit briefs on the meaning of "uses any * * * common carrier" as employed in 18 U.S. C. § 1462.

Having received and analyzed the briefs and considered the authorities offered by both sides, this Court must now determine whether the Defendant, Herbert Rubin, has "used" a common carrier within the meaning of § 1462. In addition, this Court must decide whether any scienter is necessary in order to find a violation of § 1462, and, if scienter is required, whether the Defendant, Herbert Rubin, had the requisite element.

The facts of the case are relatively simple, although the evidence presented by the prosecution at the trial was necessarily complex. Since Defendant has waived his right to Special Findings, this Court is not required to elaborate on the facts, but in view of the extensive efforts expended by counsel for both parties and their comprehensive coverage of the facts, this Court feels obligated to present a complete discussion of the route and reasoning by which we find that the Defendant Herbert Rubin is guilty beyond any reasonable doubt of a violation of 18 U.S.C. § 1462.

On either Thursday, September 21 or Friday, September 22, 1967, an unidentified person came with six cartons to a freight forwarding company run by Anthony J. and Mildred Comparato in New York City. According to the Comparators' testimony, the depositor of the cartons stated that the "L & B Company," 636 Broadway, New York City, was the company making the deposit and that the receiver was to be one "H. Ross". The packages were to be marked "Hold at Airport, Los Angeles, California". An air freight bill of lading, or what is known as an air waybill, was prepared by the Comparatos with these facts, and the air waybill and the cartons were delivered to the American Airlines Freight Depot and Freight Forwarding Office at Kennedy Airport.

On Monday, September 25, or Tuesday, September 26, 1967, Mr. Comparato in New York received a phone call from a man in Los Angeles calling himself "Ross", who gave the air waybill number, said that the shipment of six cartons had not been received in California, and asked for information about the shipment. The Comparatos thereupon placed a tracer with American Airlines which could not immediately locate the six cartons. Mr. Comparato then called "Ross" collect in Los Angeles, and informed him that they had been unable to locate the six cartons. Parenthetically, we note that the telephone number given to Comparato by "Ross", which is the same number Comparato used in his collect call to "Ross", was listed to the Defendant Rubin at his residence in Los Angeles (Encino).

On Monday, September 25, or Tuesday, September 26, 1967, to be as accurate as the Comparatos could make it, Mrs. Comparato received a call from a person who claimed to be the original depositor of the six cartons. The caller asked the Comparatos to retrieve the packages and not to ship them to Los Angeles.

Thereafter, another call came from "Ross" in Los Angeles, and this call like the first call by "Ross" to Mr. Comparato, was charged in phone company records to Defendant Rubin's home number. Mrs. Comparato told him that the six cartons had been found, and further that the depositor had changed his mind and wanted her to retrieve the cartons. At this point, "Ross" told Mrs. Comparato to disregard the instructions of the depositor and to ship the six cartons to Los Angeles. Mrs. Comparato normally followed the depositor's instructions. In this instance, however, she followed the receiver's instructions because "Ross" had the waybill number; the cartons had originally been ordered by the depositor to be shipped "collect"; American Airlines had refused to release the cartons until they had some word directly from the shipper; and she had been unable to locate the "L & B Company" at 636 Broadway, New York City. So on Thursday, September 28, 1967, she ordered American Airlines to ship the six cartons to Los Angeles.

In the meantime, on Monday, September 25, 1967, Mr. Shipman, an American Airlines Freight System employee in New York City, had discovered the six unmarked cartons in the American Airlines Freight Office at Kennedy Airport. Mr. Shipman opened two of the boxes and examined the reels of films that were contained in the cartons. Believing the films were obscene, he called an American Airlines Security Officer, Mr. Lynch, who after looking at one of the reels of films called the F.B.I. Two Special Agents of the F.B.I. went to the American Airlines Freight building at Kennedy Airport, and after viewing several of the reels at a film laboratory concluded that the films were obscene. The Agents did not give Mr. Shipman any special instructions concerning the cartons, but instead asked him to handle the cartons as a routine matter and keep them advised. The shipment was forwarded on Thursday, September 28, 1967, and the six cartons arrived at Los Angeles International Airport on Friday, September 29, 1967.

While the foregoing events were occurring in New York City, on Wednesday morning, September 27, 1967, a "Herbert Ross" came to the American Airlines Freight Depot at Los Angeles International Airport and inquired about a shipment from New York. Mr. Jack Aldrich, Customer Agent for the Airlines, made a floor search for the six cartons, but was unable to locate the shipment. Mr. Aldrich then asked "Herbert Ross" for information concerning the shipment so that he could place a tracer for the six cartons. Incidentally, during the trial, Mr. Jack Aldrich identified the Defendant Rubin as the "Herbert Ross" who made this inquiry and gave him the information necessary for the tracer.

The notes made by Aldrich while conversing with "Ross" were passed on to Miss Alice Armour in the tracing section of American Airlines Air Freight. Late Wednesday, September 27, 1967, Miss Armour received a phone call from "H. Ross" inquiring about a shipment from New York and she told him that the cartons still had not been located. On Thursday, September 28, 1967, Miss Armour received three more phone calls concerning the New York shipment from a man with the same voice who identified himself as "H. Ross."

Miss Armour further testified that she tried to phone "Ross" on Thursday or Friday at the number given her by Aldrich, the American Airlines Customer Agent who initially took the information from "Ross" about the missing shipment of six cartons. The telephone number was for Paramount Wholesale Company, and she was advised by that firm that there was no "H. Ross" at that number. On Friday, September 29, 1967, "H. Ross" called Miss Armour again, and was informed by her that the shipment had arrived. Whereupon "Ross" said he would be down about noon to pick up the cartons.

Diligent investigation by the F.B.I. disclosed that all except one of these many calls by "Ross" to American Airlines in Los Angeles came from the home telephone of Defendant Rubin. The one exception was traced to Paramount Wholesale Company, and testimony at the trial demonstrated that Defendant Rubin did have an association with this Company, a young lady testifying that recently Defendant Rubin had given her a Paramount Wholesale Company business card which showed "H. Rubin" as the owner of the Company.

The final fact that ties Defendant Rubin to the shipment of the six cartons is that he was observed near the American Airlines Freight Depot at Los Angeles International Airport about noon on Friday, September 29, 1967, by a Special Agent of the F.B.I. who had the six cartons under surveillance. Defendant approached the car in which the Special Agent was sitting and, apparently after seeing the radio and microphone that were attached to the dashboard of the Agent's car, hurriedly wheeled about, got into his car and abruptly left the airport parking lot. After Defendant fled, no one ever called again about the New York shipment or came to American Airlines to pick up the six cartons.

Having in mind all of the above facts, it is clear to this Court...