Appendix — Marks v. United States
Supreme Court brief1977
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1975
NO. 75-708
STANLEY MARKS, HARRY MOHNEY,
GUY WEIR, AMERICAN AMUSEMENT CO., INC.,
and AMERICAN NEWS CO., INC.,
Petitioners,
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR CERTIORARI FILED NOVEMBER 13, 1975
CERTIORARI GRANTED MARCH 1, 1976
INDEX
Page
IO GED 6 6's op dnaddne Kesnepsncesccecoccsevces 2
Exhibit No. 7 — Order Setting Time and
Se GU IEEE on vccdacccedcccccccccccccsccceed 4
Exhibit No. 8 — Order Setting Time and
PTE cic ce caecdecensovisevccecececeed 6
Exhibit No. 9 — Order Setting Time and
Pe GG MN Ve de ev ae ch chi dee oe dieccccccens 8
Exhibit No. 10 — Application for Issuance
of a Search Warrant... .. 2.2... . cece e cece ee ee eees 10
Exhibit No. 11 Affidavit for Search Warrant.............. 11
Exhibit No. 12 — Affidavit for Search Warrant............ 14
Exhibit No. 13 — Application for Search Warrant.......... 27
Exhibit No. 14 — Search Warrant .................0-005: 29
Exhibit No. 15 — Notice of Appeal....................- 32
Indictment (Filed April 27, 1973). ............00eeeeees 33
Memorandum (Filed October 5, 1973) ..............24.- 45
PU Ts 6 5 Sh cccckaserecesedccccdecccccesss 59
Opinions of Judgments of United States
Court of Appeals for the Sixth Circuit ........... 97
JOINT APPENDIX
IN THE
Supreme Court of the United States
OCTOBER TERM, 1975
NO. 75-708
STANLEY MARKS, HARRY MOHNEY,
GUY WEIR, AMERICAN AMUSEMENT CO., INC.,
and AMERICAN NEWS CO., INC.,
Petitioners,
PETITION FOR CERTIORARI FILED NOVEMBER 13, 1975
CERTIORARI GRANTED MARCH 1, 1976
A. 2
DOCKET ENTRIES
(Filed July 26, 1974)
1. Motion for a Temporary Restraining Order Without
Notice 2-26-73.
2. Temporary Restraining Order Without Notice 2-26-73.
3. Copy of Temporary Restraining Order Without Notice
with return 2-26-73.
4. Motion to Dismiss 2-28-73.
5. Memorandum of Points and Authorities to Show Cause
Why a Search Warrant Should Not Issue for the Seizure of Films
2-28-73.
6. Order: Motion to Dismiss overruled 2-28-73.
7. Order Setting Time and Place of Hearing 3-1-73.
8. Order Setting Time and Place of Hearing with return
3-1-73.
9. Copy of Order Setting Time and Place of Hearing with
return 3-1-73.
10.. Application for Issuance of a Search Warrant 3-1-73.
11. Affidavit for Search Warrant 3-1-73.
12. Affidavit for Search Warrant 3-1-73.
13. Magistrate’s Record of Proceedings 3-1-73.
14. Search Warrant 3-1-73.
15. Notice of Appeal 3-5-73.
A.3
16. Transcript of Hearing Before the Honorable Robert C.
Cetrulo 3-21-73.
17. Transcript of Court’s Ruling on Defendant’s Motion
to Dismiss 3-30-73.
18. ORDER of U.S. Court of Appeals for the Sixth Cir-
cuit granting motion to dismiss 12-44-73.
UNITED STATES OF AMERICA 74-1531, 74-1532,
é 74-1533, 74-1534,
EASTERN DISTRICT OF KENTUCKY 74-1535
I, Davis T. McGarvey, Clerk for the Eastern District of
Kentucky do hereby certify that the annexed and foregoing
relevant documents in the case of The United States of
America, plaintiff, versus Stanley Marks, dba Cinema X Theatre,
defendant, Magistrate’s Docket No. 3, Case No. 192 on the
Covington Docket are supplements to the Criminal Case No.
11,057.
IN TESTIMONY WHEREOF, I have herewith subscribed
my name and affixed the seal of the aforesaid Court at Coving-
ton, Kentucky, this 12th day of July, 1974.
Davis T. McGarvey, Clerk
By: /s/Dorothy D. Walsh, D.C.
A.4
EXHIBIT NO. 7
(Filed March 1, 1973
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
COVINGTON
UNITED: ~«: SOF AMERICA, : MAGISTRATE’S DOCKET
PLAINTIFF, =: NO. 3
VS:
CASE NO. 192
STANLEY MARKS
d/b/a CINEMA X THEATRE, ;
716 Monmouth Street, : ORDER SETTING TIME
Newport, Kentucky . AND PLACE OF
DEFENDANT. ° HEARING
Now to-wit on this 26th day of February, 1973. this
matter comes before the undersigned upon the application of
the United States of America for the issuance of a search war-
rant for the premises described as Cinema X Theatre, 716
Monmouth Street, Newport, Kentucky, to search for certain
films, previews, containers and documents described in the
affidavit attached to said application.
Before a determination is made as to whether or not
probable cause is established for the issuing of said search
warrant the defendant, Stanley Marks d/b/a Cinema X.
Theatre, should be given an opportunity to appear at an adver-
sary hearing at which a determination will be made as to
whether or not there is probable cause to find said films
obscene.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND
DECREED that said adversary hearing shall be held at the
Office of the United States Magistrate at Greenup Street,
A.5
Covington, Kentucky, on the 27th day of February, 1973,
at 2 P.M., EST.
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that said notice of said hearing, which shall be an
adversary hearing, shall be served on the defendant by deliver-
ing a copy of this Order to the defendant at least twelve hours
prior to said hearing.
IT IS FURTHER ORDERED that this Order may be
served by any special agent in the Federal Bureau of Investi-
gation.
DATED this 26th day of February, 1973.
/s/ROBERT C. CETRULO
UNITED STATES MAGISTRATE
EASTERN DISTRICT OF
KENTUCKY
A. 6
EXHIBIT NO. 8
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
COVINGTON
UNITED STATES OF AMERICA, : MAGISTRATE’S DOCKET
PLAINTIFF, ; NO. 3
VS:
CASE NO. 192
STANLEY MARKS
d/b/a CINEMA X THEATRE, :
716 Monmouth Street, : ORDER SETTING TIME
Newport, Kentucky ; AND PLACE OF
DEFENDANT. =: HEARING
Now to-wit on this 26th day of February, 1973. this
matter comes before the undersigned upon the application of
the United States of America for the issuance of a search war-
rant for the premises described as Cinema X Theatre, 716
Monmouth Street, Newport, Kentucky, to search for certain
films, previews. containers and documents described in the
affidavit attached to said application.
Before a determination is made as to whether or not
probable cause is established for the issuing of said search
warrant the defendant, Stanley Marks d/b/a Cinema X.
Theatre, should be given an opportunity to appear at an adver-
sary hearing at which a determination will be made as to
whether or not there is probable cause to find said films
obsvene.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND
DECREED that said adversary hearing shall be held at the
Office of the United States Magistrate at Greenup Street,
A.7
Covington, Kentucky, on the 27th day of February, 1973,
at 2 P.M., EST.
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that said notice of said hearing, which shall be an
adversary hearing, shall be served on the defendant by deliver-
ing a copy of this Order to the defendant at least twelve hours
prior to said hearing.
IT IS FURTHER ORDERED that this Order may be
served by any special agent in the Federal Bureau of Investi-
gation.
DATED this 26th day of February, 1973.
/s/ROBERT C. CETRULO
UNITED STATES MAGISTRATE
EASTERN DISTRICT OF
KENTUCKY
RETURN
I received the attached notice of hearing February 26,
1973 and have executed it as follows:
On February 26, 1973 at 1:51 p.m. EST, I served a copy
of the said notice on Jay Trimble, Cashier, Cinema X Theater,
716 Monmouth, Newport Kentucky at Cinema X Theater, 716
Monmouth, Newport, Kentucky who was then identified to
me as the person in charge.
/s/Vernon R. Glossup
Special Agent, FBI
A. 8
EXHIBIT NO. 9
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
COVINGTON
UNITED STATES OF AMERICA, : MAGISTRATE’S DOCKET
PLAINTIFF, uy NO. 3
VS:
CASE NO. 192
STANLEY MARKS
d/b/a CINEMA X THEATRE, :
716 Monmouth Street, : ORDER SETTING TIME
Newport, Kentucky : AND PLACE OF
DEFENDANT. : HEARING
Now to-wit on this 26th day of February, 1973. this
matter comes before the undersigned upon the application of
the United States of America for the issuance of a search war-
rant for the premises described as Cinema X Theatre, 716
Monmouth Street, Newport, Kentucky, to search for certain
films, previews, containers and documents described in the
affidavit attached to said application.
Before a determination is made as to whether or not
probable cause is established for the issuing of said search
warrant the defendant, Stanley Marks d/b/a Cinema X.
Theatre, should be given an opportunity to appear at an adver-
sary hearing at which a determination will be made as to
whether or not there is probable cause to find said films
obscene.
WHEREFORE, IT IS ORDERED, ADJUDGED, AND
DECREED that said adversary hearing shall be held at the
Office of the United States Magistrate at Greenup Street,
A.9
Covington, Kentucky, on the 27th day of February, 1973,
at 2 P.M., EST.
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that said notice of said hearing, which shall be an
adversary hearing, sha!) be served on the defendant by deliver-
ing a copy of this Order to the defendant at least twelve hours
prior to said hearing.
IT IS FURTHER ORDERED that this Order may be
served by any special agent in the Federal Bureau of Investi-
gation.
DATED this 26th day of February, 1973.
/s/ROBERT C. CETRULO
UNITED STATES MAGISTRATE
EASTERN DISTRICT OF
KENTUCKY
Return
I received the attached notice of Hearing on February 26,
1973 and have executed it as follows:
On February 27, 1973 at 1:20 p.m. EST, I served a copy
of the said notice on STANLEY HERMAN MARKS, owner of
Cinema X Theater, 716 Monmouth Street, Newport, Kentucky,
at 216 East 9th Street, Cincinnati, Ohio in the presence of
Attorney Andrew Dennison.
/s/Paul L. Shannon
Special Agent, FBI aa
/s/Louis Paul Russo
Special Agent, FBI
A. 10
EXHIBIT NO. 10
(Filed March 1, 1973)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON
UNITED STATES OF AMERICA - : MAGISTRATE’S DOCKET
Plaintiff : NO. 3
: Case NO. 192
vs.
STANLEY MARKS ,
d/b/a Cinema X Theater ' APPLICATION FOR
716 Monmouth Street ~§ ISSUANCE OF A SEARCH
Newport, Kentucky * WARRANT
Comes now the United States of America and moves the
Honorable Robert Cetrulo, United States Magistrate for the
Eastern District of Kentucky, to issue a search warrant for
the premises known as Cinema X Theater, 716 Monmouth
Street, Newport, Kentucky and in support of said motion
presents the affidavits of Vernon Glossup and Ron Aebly,
Special Agents of the Federal Bureau of Investigation, a copy of
which is attached to this motion.
Respectfully submitted,
Eugene E. Siler, Jr.
United States Attorney
By: /s/ Louis DeFalaise
Assistant United States Attorney
A. 11
EXHIBIT NO. 11
(Filed March 1, 1973)
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF KENTUCKY
COVINGTON
UNITED STATES OF AMERICA : Commissioner’s Docket
. No. 3
i: ; Case No. 192
STANLEY MARKS ¢
d/b/a Cinema X ; AFFID
Newport, Kentucky :
BEFORE Robert Cetrulo, Covington, Kentucky
The undersigned being duly sworn deposes and says:
That he is positive that on the premises known as
Cinema X Theater
716 Monmouth Street
Newport, Kentucky
Campbell County in the Eastern District of Kentucky there is
now being concealed certain property, namely
1. One movie film entitled “Swing High”.
2. A preview film clip entitled “Doctors Disciples”.
which are obscene, lewd, lascivious and filthy and were know-
ingly transported in interstate commerce for the purpose of sale
and distribution in violation of Title 18, Section 1465, United
States Code.
A. 12
And that the facts tending to establish the foregoing
grounds for issuance of a Search Warrant are as follows: The
affiant has been a Special Agent of the Federal Bureau of Inves-
tigation for 2 years.
On the afternoon of Friday, February 23, 1973, the affiant
personally entered the premises known as Cinema X Theater,
716 Monmouth Street, Newport, Kentucky paying the admis-
sion price of $5.00. While ther in addition to the film “Deep
Throat” and previews listed in the companion affidavit which
the affiant has read, there was shown a movie of approximately
one hour, entitled “Swing High” and a brief preview entitled
A. 13
their licking by French kissing each other with strands of semen
between their mouths.
The girl previously fully dressed performed fellation on another
male until he ejaculated in her mouth and semen could be seen
in the corners of her mouth.
In another scene a male and female couple performed coitus
inter mammary until he ejaculated. The semen sprayed her
nose, mouth, and face. She then fellated him.
In another scene the female who had been originally clad lays
“ , .
—__——§‘Deekeors—Diseiple”—Fhe—affiant_observed—identicat scenes to
those described in the affidavit of Special Agent Glossup during
the showing of the movie “Deep Throat”’ as well as various
previews listed in Special Agent Glossups affidavit.
The movie “Swing High” opened with a group scene of three
naked males and three naked females and one fully dressed
female. Two of the naked females were kissing and fondling
each other breasts.
The seven participants then decided to pull slips of papers from
a cloth has on which would be written various sexual activities
to perform. They then performed on the screen with close up
of their various sexual organs certain acts of cunnilingus, fella-
tion, sexual intercourse, masterbation, oranism, and sodomy.
These acts continued for approximately one half hour at which
time they all retired to the bath room and took showers. After
showering they switched mates and began performing the same
acts again. One male layed on his back and a female in the
superior position performed sexual intercourse while another
female with dark hair kissed his testicles and rubbed the other
female breast.
Two other girls licked the penis of another male like an ice
cream cone. The two girls would lick from the bottom to the
top of the penis until the male reached his climax interspaced
the top part of her body in a cushioned chair and a male sits on
top of the chair and she strokes his penis back and forth with
her right hand, while another male kisses and licks her vagina.
She then tells the secor.d male to eat her slowly which he did.
In another scene a male and female are having intercourse in
the female superior position while he massages her right breast
while another female kisses and fondles her other breast.
There are many similar scenes.
The preview of “Doctors Disciples” showed on screeen scenes
of Onanism, intercourse, and male ejaculation.
The affiant observed some fifty other patrons in the theater.
/s/ Ronald F. Selby
Special Agent, FBI
Sworn to before me, and subscribed in my presence,
26 Feb., 1973
/s/Robert C. Cetrulo,
United States
A. 14
EXHIBIT NO. 12
(Filed March 1, 1973)
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF KENTUCKY
COVINGTON
UNITED STATES OF AMERICA : Magistrate’s Docket
a : No. 3
Case No. 192
STANLEY MARKS
dba Cinema X :
716 Monmouth Street - AFFIDAVIT FO™
Newport, Kentucky ; SEARCH WARRANT
BEFORE: Robert Cetrulo, Covington, Kentucky
The undersigned being duly sworn deposes and says:
That he is positive that on the premises known as
Cinema X Theater
716 Monmouth Street
Newport, Kentucky
Campbell County in the Eastern District of Kentucky there is
now being concealed certain property, namely
1. One movie film entitled “Deep Throat’’, a Vanguard film
directed by Jerry Gerrard, produced by Lou Perry.
2. One movie film entitled “Carnal Cure” produced by Emilo
Portici.
3. One set of previews consisting of clips of movie films var-
iously entitled
“Teen Age Cow Girls”
“Black on White”
A. 15
“A Few Bucks More”
“Memories of a Madame”
“*Let Me Count the Lays”
4. Serr Connery Ley Oe mt Saree Sent, wun AE
ings and labels thereon.
5. Documents pertaining to the source, distribution, and
shipping of the aforesaid films and previews.
6. Advertising pertaining to the aforesaid films and pre-
views.
which are obscene, lewd, lascivious, and filthy and were know-
ingly transported in interstate commerce for the purpose of
sale and distribution in violation of Title 18, Section 1465,
United States Code.
And that the facts tending to establish the foregoing
grounds for issuance of a Search Warrant are as follows:
The affiant has been a Special Agent for the Federal
accepted the same from me, producing a ticket, tearing it in
half, and dropping one-half into a box behind the counter of
the front portion of the building. Before proceeding into the
theater he then cautioned the affiant that there would be posi-
A. 16
Upon the walls behind the counter in the lobby of the
theater in which the aforesaid ticket was purchased, there was
a sign stating that the movie being shown advertised in the
newspaper as “Deep Voice” was in fact the movie known as
“Deep Throat.” Subsequent to the said ticket purchase, the
affiant passed through one of two red curtains entrances from
the lobby end of the theater to the actual theater proper. The
affiant there observed as part of the premises known as the
Cinema X theater, 716 Monmouth Street, Newport, Kentucky,
a viewing room approximately 50’ x 150’, with a seating
capacity of approximately 350 and containing a regular size
movie screen, with exits to the left and the right of the screen.
Upon entry it was obvious that there was approximately 100 to
125 patrons of both male and female sexes observing the movie
which was then in progress.
The affiant then observed in their entirety the following
described. films which were presented and shown in the said
Cinema X theater at 716 Monmouth Street, Newport,
Kentucky, described as follows:
1. A film entitled “Deep Throat,” prepared by Vanguard
Films, written, directed, and edited by Jerry Gerrard, and pro-
duced by Lou Perry.
Superimposed upon the screen credits was a well-dressed
female actress, walked to enter a 1972 white over blue Cadillac,
bearing California license tags, with large white letter titles
and credits. In the background were observed palm trees, a large
body of water with surf, none of such scenes, to the affiant’s
knowledge, are located in the Eastern District of Kentucky.
Upon completion of the credits, during which time the
featured actress, Linda Lovelace drove the Cadillac through
what appeared to be a large California suburban city, she was
seen to enter the kitchen of a house in which an older female,
approximately 35 years of age, was sitting on a table with her
legs spread apart, exposed from the waist down, with a young
A. 17
appearing to be a delivery boy engaging her in cunnilingus.
this sequence, the tongue of the male was shown in
contact views of the female’s labia major, la>ia minor,
af fENUE!
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41
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cunnilingus
pool. A mock serious discussion was then held at the pool-
between the two females concerning Linda Lovelace’s
t with her many previous sexual experiences.
‘The older female friend then stated that they should have a
party with a large number of male guests, of whom at least one
should be able to bring Ms. Lovelace to a climax.
e 8
|
The next scene was the arrival at the home of Ms. Love-
worry they were just in time for the party and a good time
would be had by all, that they should sit down and have a drink
and await their turn.
The next scene was in Ms. Lovelace’s bedroom. She was
kneeling naked on the bed on her knees and elbows, with a
naked male behind her. The camera shifted view to a shot from
beneath the xroins of Ms. Lovelace and her male companion.
Ms. Lovelace’s pubic and vaginal area filled the screen, the
inside of the vagina being clearly visible due to the lack of pubic
hair which had been shaved off. Above the vaginal area, the
penis of the male could be observed entering and withdrawing
from her rectum in the act of sodomy. .
The next scene shifted out to the living room of the house
where the older female was also naked and was engaged in sex
A. 18
with two naked males, one of whom was either sodomizing her
or entering her from the rear, and the other on whom she was
practicing fellatio. In subsequent scenes, the camera shifted
back and forth from the living room with the older female
and Ms. Lovelace’s bedroom as Ms. Lovelace engaged in a
variety of sexual acts with a variety of partners, including
cunnilingus on Ms. Lovelace and fellatio by her on her male
partner and sexual intercourse, all of which were shown in
close-up detail of the contacting human sexual organs. The
climax of the fellatio scene was an on-screen ejaculation of
semen by a male organ. The final scene of this segment of the
film was the living room in which the latest partner of Ms.
Lovelace entered and said that she was ready for another male.
But no one was left who could perform a sexual act with Ms.
Lovelace. It was mentioned that she had just had a total of 14
men.
The next scene presented Ms. Lovelace and her older
female friend walking outside. Ms. Lovelace, in summary, stated
that she still had not had a full climax as a result of the party
that they had held. The older female then suggested that she
go see Dr. Young. Ms. Lovelace did so and the next scene was
the doctor’s office.
The first observation in the doctor scene was a male
dressed in medical garb who played a stock “‘nutty” physician
character. The doctor took Linda into an examination room,
which appeared to be a bedroom, for a physical examination
to determine why she could not reach a climax. The doctor
had her remove her underpants and called for his nurse to
bring a sterilizer in which the nurse brought a small bowl, in
which appeared to be a clear liquid, and into which he dipped
his fingers. He then immediately proceeded to examine her
vagina, spreading the labia major and labia minor with his
fingers, all of which was shown close-up on the screen. The
doctor remarked at this point that he could not locate her
clitoris and continued his search in the vaginal area for several
minutes. Upon learning that she had no clitoris, Ms. Lovelace
e og DAI
A. 19
began to cry. The doctor then inquired what type of sexual
activity gave her the greatest pleasure. She informed him that
it was giving head (fellatio). The doctor then asked her to open
her mouth so he could examine her oral area. During this
examination he discovered that her clitoris was located as he
described it, deep in her throat at the base of her throat. He
then informed her that to enjoy a normal climax that she must
give deep throat. He asked her if she had ever taken a penis
deep into her throat, to which she replied no that she choked.
He then said it is all a matter of muscle coatrol and discipline,
after which he invited her to practice on him. He then opened
his pants, exposed himself, and she fellated him. In doing so,
on screen she took the head of his organ in her mouth and
proceeded to work it entirely into her mouth until the entire
organ disappeared from sight. This scene lasted for approxi-
mately 10 minutes and was climaxed by her apparent orgastic
experience which was symbolized by mammoth bells ringing,
fireworks, and the launching of a Saturn rocket, each scene
of which was intertwined with scenes of Ms. Lovelace’s mouth,
cheeks, and chin, dripping seminal fluid ejaculated from the
penis which she licked and swallowed.
Upon the completion of this act, Ms. Lovelace told the
doctor that she was in love with him and that they should get
his nurse would not let him but he then invited Ms. Lovelace
to become his physical therapist.
The following segments of the movie depict case histories
of Dr. Young in which Ms. Lovelace, acts as a physical thera-
pist. The opening scene of the first case history showed Dr.
Young dictating the case as he performed rear entry inter-
course upon his nurse. His voice then faded out and Ms. Lovelace
dressed in a white nurse outfit entered a room with a middle-
aged male. Ms. Lovelace, while retaining what appeared to be
a slip, removed her panties and at the male’s invitation, who
lowered his pants, climbed upon a table and spread her legs.
The male then proceeded to have intercourse with her, which
A. 20
was shown on screen. During the intercourse he produced a
test tube type glass or plastic container and placed this con-
tainer into her vagina and proceeded to pour coca cola into it,
after which they both drank its contents through long plastic
tubing as the coca cola theme song played and they continued
to have sexual relations.
The next scene showed Ms. Lovelace and the doctor
together again, in which she was performing fellatio on him
again.
The next scene showed the nurse performing fellation
upon Dr. Young as he dictated a case history of an older man
who was a widower who had not had sex in the two years since
his wife’s death. The scene faded to her entering a motel room
with a fade back to the doctor who gave the details of this case
history and then they faded back to the motel room in which
the older male was thanking Ms. Lovelace for her services. The
patient said that he would like to continue this type of therapy,
to which Ms. Lovelace replied that it would be terribly expen-
sive, and the patient replied that money was no object as he
was on Medicare and he produced his Medicare card.
The next scene shows Dr. Young lying in an apparent
state of collapse with a hot water bottle to his groin. Ms.
Lovelace enters and after repeated refusals by the doctor
finally succeeds in uncovering his sexual organs. Over the
obvious reluctance of the doctor, she removes a bandage from
his penis and proceeds to fellate him.
The next scene shows Dr. Young performing cunnilingus
on his nurse who is dictating another case history. The nurse
observes that if this patient and Ms. Lovelace were compatible
they would be suitable for marriage.
The scene then faded to a bathroom in which Ms. Lovelace
was perched upon the water tank of the commode, with one
foot in the sink to the right and one foot on the lid of the
A. 21
commode, with her vaginal area being exposed. She then took
an Old Spice shaving mug and lathered her pubic area, as the
yed in the background. She then shaved
doing so a masked man with a gun
observed slipping in the front door peering at Ms. Love-
ii
FF
d
u
:
ing her shaving and wiping off the excess foam then stood up,
stretched, and said “I sure could use a big man.” She then pro-
ceeded to enter the living room where the~masked man
demanded her money or her life. She handed him her cash and
told him to do anything to her but not to hurt her. The masked
man then said I am going to rape you, I have a gun. She then
said “O.K., just don’t hurt me.” He then lowered his gun,
pulled down his mask, and complained that she wasn’t doing
it right, that he had a gun and she was supposed to be scared
and afraid for her life. She apologized and said it was because
he was so masterful but that if he would try it again she would
do better. After some further discussion, she urged that they go
to bed because he made her hot. She said that she would do
anything for him. He then urged her to marry him. She refused
and upon his inquiry said, I can’t because “the man I marry
must have a 9” cock.” He began to complain bitterly about his
many failures in life but that he understood and that he was
only 4” from happiness. Ms. Lovelace then urged him to call
Dr. Young to see if a silicone injection or some other surgical
procedure would help. The male was observed calling on the
telephone and apparently having a conversation with Dr.
Young. At the end of the conversation the male hung up and
said that Dr. Young would help him, that he could cut it
down and make it any size she wanted. He then exposed him-
self. She then eagerly seized his organ and performed fellatio
which was again climaxed with the mammoth bells ringing,
firewords, and launching of a Saturn rocket and each scene of
which was intertwined with scenes of her mouth, cheeks and
chin smeared, seminal fluid seen ejaculating from the penis,
and also the licking and swallowing of this fluid.
This feature ended.
A. 22
2. A movie entitled “Carnal Cure”, produced Emilo
Portici. The first scene in this movie was what appeared to be
a doctor’s office. The doctor entered and went into his office.
A young lady then entered and asked to see the doctor. The
nurse sent her into the inner office. The girl complained to the
doctor that she had a cuckoo which came out of her periodi-
cally. The doctor inquired from whence the cuckoo came. She
replied by indicating her vagina. The doctor had her remove her
pants, hike her skirts, and sit upon his desk for the examina-
tion. A close-up of the exposed sex organ was then shown as
the doctor used his fingers to spread the labia major and minor,
and touch the inner vaginal tract, including her clitoris. During
this examination, the doctor and the young lady carried on a
conversation about the periodic appearance of the alleged
cuckoo. The doctor stated that he could not find any evidence
of a foreign body, but stated that perhaps he could stimulate
it out. Then on screen in close ups he proceeded to perform
cunnilingus, applying his lips and tongue to the whole vagina
area, but particularly the clitoris and labia majors and minors.
This treatment produced no results except what appeared to be
an orgiastic experienc. by the female. The doctor then had the
girl lie back on the desk after she divested herself of her cloth-
ing and then producing his erect organ proceeded to have
intercourse with her in which there were many close ups of the
vagina being entered by the penis.
During these acts performed by the doctor there were
fade-outs to the outer office during which three separate
males entered the office and upon demanding to see the
doctor were taken by three different nurses to examining
rooms where the nurses proceeded to remove their clothing
and directed the males to do the same. In succeeding scenes
there were frequent cuts back and forth to the doctor’s office
in which the events previously described were being trans-
acted to the three examining rooms.
In the first examining room, the first female nurse, white,
apparent age early 20’s with shoulder length curly brown hair,
A. 23
was now nude. With her was a tall white male appearing to be
in late adolescence, also nude. During the many cuts back and
forth to this couple, the male performed cunnilingus on the
female. The female performed fellatio on the screen, climaxed
by closeup shots of the male organ in the female mouth with his
seminal fluid pouring fourth over her chin. Subsequently, this
same couple performed various acts of copulation in various
positions on screen, interspaced with the scenes previously
described where shots of the second nurse and her male com-
panion who were in another examining room.
The second nurse, white female, with shoulder length
black hair, was totally nude. This female appeared to be in her
early to mid 20’s with large breasts. Her male companion also
nude, appeared to be medium height with black hair. This
couple also performed various on screen acts of fellation,
cunnilingus and coitus in various positions climaxed by an act
of reciprocal oral intercourse, with the female above in the
“69” postion. All of the above scenes were interspersed with
scenes of the 4th couple.
The fourth nurse was an athletic looking, long-haired
blonde, apparently in her 20’s. She was also nude. Her male
companion appeared to be in his late 20’s with short, dark,
curly hair. They also performed on screen acts of fellatio,
cunnilingus and coitus, particularly showing shots of inter-
course in the female superior position with closeups of her
vagina as it rose and fell on the penal shaft.
In the final scenes of the movie, the young female patient
had left as had the male patient with the first nurse who paid
her $20.00. That nurse then went to the doctor’s office where
he requested that she submit to a vaginal examination and upon
her exposing herself, he declared, “You still have the prettiest
pussy in the world.” He then performed cunnilingus upon her,
after which he invited her to have lunch on his penis, which she
did. They then engaged in sexual intercourse on screen.
A. 24
In the final scenes of the movie, the first nurse then goes
into the examining room where the third nurse is now engaged
in reciprocal oral intercourse in the female superior “69” posi-
tion. She tells the third nurse that the doctor wants her, and
that she will take over. The third nurse removes the male’s
penis from her mouth and, getting up, leaves. The first nurse
then assumes her position, her pubic area in immediate proxi-
minity to the male’s mouth and takes his penis into her mouth.
All of which is shown on screen.
At the end of the movie, the girls are counting up the
money they have received for their various services. This movie
closes as the third male patient returns to see the doctor, upon
seeing him and receiving a convential treatment for which he
was charged $5.00 told the doctor he preferred the $20.00
treatment.
3. Several previews shown as coming attractions, not
necessarily in this order:
First: A preview entitled “Teen-age Cowgirls.” During
this preview, two adolescent females, one black, one white,
are shown in closeup scenes of fellatio and copulation, all of
which are shown on screen. During these scenes, a narrator’s
voice was heard urging patrons to attend this future feature
in which they would be shown explicit sex at its wildest in
the west.
Second: A preview for a movie as a coming attraction at
the Cinema X theater, 716 Monmouth Street, Newport,
Kentucky, was shown entitled, “Black on White.” During this
preview, on screen were shown various acts of fellatio cun-
nilingus and coitus by a white male and black female and a
black male and white female. During these scenes, a narrator’s
voice was heard stating that this was a future offering of this
theater and asking whether you, as a white male had ever
wondered about sex with a black female, using slang expres-
sions to describe her anatomy. The voice then asked whether
A. 25
you, as a white female had ever wondered what it would be like
to have a black penis (slang term was actually used). The nar-
rator continued that you would find out in this movie when a
black couple moved into next door to a white couple. ©
Third: A preview of a movie to be shown at a future time
at Cinema X_ theater, entitled “Memories of a Madam.” This
preview opened with a bed shot of three couples in various
states of nudity on the same bed engaged in various oral and
genital acts and with one female applying a vibrator to her
vaginal area. During subsequent scenes, the narrator’s voice
was heard saying that you would see what it would be like to
be the proper female librarian by day and by night desire to
be tied helplessly as a large black stud exposed himself and
you begged him to rape you. During this narration, scenes of
a white female and black male engaged in copulation in the
male superior position were shown. The narration also said that
you would see what would happen when an otherwise virile
male had to don the female undergarments to obtain
tumesence. It showed a male tied to a bed being violently
slapped in the face.
Fourth: A preview was presented for a movie entitled,
“A Few Bucks More” to be presented at the Cinema X
Theater, 716 Monmouth Street, Newport, Kentucky, in which
two men were shown on a couch or bed, their erect penises
exposed as two women kneeling before them fellatio them,
climaxed by both ejaculating in the mouths of the females,
the seminal fluid flowing over the females’ chins. The nar-
rator’s voice was heard urging you to see the dirties sex ever
in the future feature.
A fifth preview was shown whose exact title the affiant
recalls as “Let Me Count the Lays” for future presentation
at the Cinema X theater, 716 Monmouth Street, Newport,
Kentucky. The narration of this preview said that it would show
you the wedding night of a super-stud husband and his “cherry”
virgin wife as she attempted to gain more time by having him
detail all his past sexual adventures. During this narration,
A. 26
various scenes were shown of the male engaging in cunnilingus,
fellatio and copulation with various females.
During the course of affiant’s investigation, he also dis-
covered that the film, “Deep Throat” was made in California.
He has also discovered that shipments of film addressed to
Cinema X theater, 716 Monmouth Street, Newport, Kentucky,
have been received through the agency of Greyhound Express
for the past several months. He further discovered that a ship-
ment of film was received at the Greyhound Bus Station
addressed to Cinema X theater, 716 Monmouth Street,
Newport, Kentucky, from Evanstown, Indiana, during the
month of January and that the present feature attraction “Deep
Throat” began to run at the said Cinema X theater on January
31.
/s/Vernon R. Glossup
Special Agent - FBI
2/26/1973
Sworn to before me, and subscribed in my presence,
/s/Robert Cetrulo
United States Magistrate.
i
A. 27
EXHIBIT NO. 13
(Filed March 3, 1973)
UNITED STATES MAGISTRATE
EASTERN DISTRICi OF KENTUCKY
RECORD OF PROCEEDINGS—MISCELLANEOUS
BEFORE: ROBERT C. CETRULO, Covington, Kentucky
This form should be used to record proceedings for which
Forms AO 100 and AO 101 are not adapted, such as applica-
tions for search warrants, extradition proceedings, depositions
in civil cases, proceedings for the release of poor convicts, refer-
ences in civil or admiralty cases, attachments and subsequent
hearings in internal revenue matters, proceedings to settle or
certify nonpayment of seamens wages, civil rights proceedings,
detention of witnesses on proceedings in connection with
criminal proceedings, if not included in Form AO 100, etc. A
separate page should be used for each proceeding, showing the
title of the case, its nature, and the date and nature of each step
taken.
Magistrate’s Docket No. 3, Case No. 192
United States of America
vs.
: APPLICATION FOR
Stanley Marks, d/b/a Cinema ; SEARCH WARRANT
X Theater, 716 Monmouth ;
Street, Newport, Kentucky
2-26-73 —Filing of verified Application for Search Warrant
supported by two Affidavits.
2-26-73 —Execution and issuance of Order setting time
and place of adversary hearing for February 27, 1973 at 2:00
P.M.
A. 28
2-26-73 —Legal Research.
2-27-73 —Receipt and review of Briefs of counsel. Oral
argument of counsel. Full preliminary hearin gon issue of
probably cause with respect to issue of alleged obscenity of
material sought to be seized. :
2-27-73 —Execution of return by Special Agent Paul L.
Shannon, FBI, and Lewis Paul Russo, Special Agent, FBI,
certifying service of the Order of hearing on February 27, 1973
at 1:20 P.M. EST on Stanley Herman Marks owner of Cinema X
Theater, Newport, Kentucky.
2-27-73 — Execution of return by Special Agent Vernon
R. Glossup, and certifying service of the Order of hearing on
February 26, 1973 on Jay Trimble, cashier, Cinema X Theater,
716 Monmouth Street, Newport, Kentucky on February 26,
1973 at 1:51 P.M. EST.
2-27-73 — Issurance of search warrant.
2-28-73 —Return of executed search warrant made by
Special Agent Glossup before Magistrate Cetrulo, with attached
two page inventory.
A. 29
EXHIBIT NO. 14 *
(Filed March 1, 1973)
,
\
4
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF KENTUCKY
CONVINGTON
UNITED STATES OF AMERICA : Magistrate’s Docket No. 3
VS. Case No. 192
STANLEY MARKS :
dba Cinema X Theater ~ 7
716 Monmouth Street =: SEARCH WARRANT
Newport, Kentucky ~
To Any Special Agent of the Federal Bureau of Investigation
Affidavit having been made before me by Vernon Glossup
and Ron Aebly that he is positive that on the premises known
as v
Cinema X. Theater
716 Monmouth Street ~
Newport, Kentucky
Campbell County in the Eastern District of Kentucky there
is now being concealed certain property, namely
1. One movie film entitled “Deep Throat’, a Vanguard film
directed by Jerry Gerrard, produced by Lou Perry.
2. One movie film entitled “Carnal Cure” produced by Emilo
Portici.
3. One set of previews consisting of clips of movie films
variously entitled
which are obscene, lude, lascivious, and filty and were know-
ingly transported in interstate commerce for the purpose of
A. 30
sale and distribution in violation of Title 18, Section 1465,
United States Code. and as I am satisified that there is probable
cause to believe th t the property so described is being con-
cealed on the premises above described and that the foregoing
grounds for application for issuance of the search warrant exist.
You are hereby commanded to search forthwith the place
named for the property specified, serving this warrant and
making the search at any time in the day or night and if the
property be found there to seize it, leaving a copy of this war-
rant and a receipt for the property taken, and prepare a written
inventory of the property seized and return this warrant and
bring the property before me within ten days of this date, as
required by law.
Dated this 27th day of February, 1973.
/s/Robert C. Cetrulo.
U.S. Magistrate
RETURN
I received the attached search warrant 2/27/1973, and
have executed it as follows:
On 2/27/1973 at 6:28 o'clock P.M., I searched the
premises described in the warrant and
I léft a copy of the warrant with Jerome Cloud together
with a receipt for the items seized.
The following is an inventory of property taken pursuant
to the warrant:
This is to Certify that on February 27, 1973 at Newport,
Kentucky, Special Agents of the Federal Bureau of Investi-
gation, U.S. Department of Justice, at the time of conducting
a search of the Cinema X Theater, 716 Monmouth Street, New-
port, Kentucky, premises, obtained the below listed items. I
A. 31
further certify that the below list represents all that was
obtained by Special Agents of the Federal Bureau of Investiga-
tion, U.S. Department of Justice.
Approximately 300 half sheets advertising ““Deep Throat”.
1 hand printed sign for “Carnal Cure”.
4 schedules for times of “Deep Throat, “Swing High”, and
“Carnal Cure”. ~
One shipping carton which contained two reels marked
“Swing High” — no film —
1 piece of broken tape inscription “Deep Throat”.
2 reels “Deep Throat”, “Teenage Cowgirls”, “Black on
White”, “A few Bucks More”, “Memoirs of A Madame”,
“Let me Count the Lays”, “Doctors Disciples”.
2 reels containing movie “Swing High”;
1 green plastic treash bag containg add of “Deep Throat”.
9 advertising posters taken from lobby and approximately
400 half sheets add for “Deep Throat”’.
P Per
a +
ers
This inventory was made in the presence of Jerome Cloud,
Attorney Andrew Dennison and Special Agent William S.
Dillon.
1 swear that his Inventory is a true and detailed account
of all the property taken by me on the warrant.
/s/Vernon R. Glossup
Subscribed and sworn to and returned before me this 28th
day of February, 1973.
/s/Robert C. Cetrulo
U. S. Magistrate.
A. 32
EXHIBIT NO. 15
(Filed March 5, 1973)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT COVINGTON
UNITED STATES OF AMERICA,
Plaintiff Magistrate’s Docket No. 3
Case No. 192
vs.
NOTICE OF APPEAL
STANLEY MARKS, d.b.a.
CINEMA X THEATRE,
Defendant
Notice is hereby given that Stanley Marks, defendant here-
in, hereby appeals to the United States Court of Appeals for the
Sixth Circuit from the Order overruling defendant’s Motion to
Dismiss, thereby permitting seizure of matter protected by the
First Amendment and the impossition of impermissible prior
restraint, entered in this action on the 28th day of February,
1973.
/s/ANDREW B. DENNISON
Attorney for Defendant
and
CHARLES J. SCHERER
Certification:
I hereby certify that a copy of the foregoing Notice of
Appeal was delivered this 5th day of March, 1973, to the
United States Attorney.
/s/ Andrew B. Dennison
Attorney for Defendant
A. 33
INDICTMENT
(Filed April 27, 1973)
NO. 11,057
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
THE UNITED STATES OF AMERICA
vs.
STANLEY MARKS DBA CINEMA X THEATRE,
HARRY MOHNEY, GUY WEIR, AMERICAN
AMUSEMENT COMPANY, INC. and AMERICAN
NEWS COMPANY, INC. aka AMERICAN
NEWS DISTRIBUTING COMPANY
INDICTMENT
T. 18, Sec. 1465, USC — Transporting obscene films in inter-
state commerce for sale or distribution — 8 Cts.
T. 18, Sec. 371, USC — Conspiring to violate Title 18, Sec.
1465, USC — 1 Ct.
A true bill, /s/ James A. Middleton, Foreman.
COUNT 1
(Title 18, Sec. 1465, USC)
THE GRAND JURY CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of January 24 and January 31, 1973,
A. 34
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY :
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC, AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in
interstate commerce from the states of Michigan, Indiana and
other states to the Grand Jury unki. , to Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film entitled, “Deep
Throat” for the purpose of the sale and distribution of said
film.
COUNT 2
(Title 18, Sec. 1465, USC)
THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of February Ist and February 27th,
1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GURY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
' AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indiana and other
states to the Grand Jury unknown, to Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film entitled, “Swing High”
for the purpose of the sale and distribution of said film.
A. 35
COUNT 3
(Title 18, Sec. 1465, USC)
THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of January 15 and February 27, 1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indig@na and other
states to the Grand Jury unknown, t© Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film preview entitled,
“Doctor’s Disciples” for the purpose of the sale and distribu-
tion of said film.
~ COUNT4
(Tithe 18, Sec. 1465, USC)
THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of January 15 and February 27, 1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indiana and other
»
A. 36
states to the Grand Jury unknown, to Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film preview entitled,
“Teenage Cowgirls” for the purpose of the sale and distribu-
tion of said film.
COUNT 5
(Title 18, Sec. 1465, USC)
THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of January 15 and February 27, 1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indiana and other
states to the Grand Jury unknown, to Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film preview entitled,
“Black On White” for the purpose of the sale and distribu-
tion of said film.
COUNT 6
(Title 18, Sec. 1465, USC)
THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but: between the dates of January 15 and February 27, 1973,
A. 37
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR |
AMERICAN AMUSEMENT COMPANY, INC. _
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indiana and other
states to the Grand Jury unknown, to Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film preview entitled, “A
Few Bucks More,” for the purpose of the sale and distribu-
tion of said film.
COUNT 7
(Titie 18, Sec. 1465, USC) ©
THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of January 15 and February 27, 1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indiana and other
A. 38
COUNT 8
(Title 18, Sec. 1465, USC)
_THE GRAND JURY FURTHER CHARGES:
That on or about some date to the Grand Jury unknown,
but between the dates of January 15 and February 27, 1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported in inter-
state commerce from the states of Michigan, Indiana and other
states to the Grand Jury unknown, to Newport, Campbell
County, in the Eastern District of Kentucky, copies of an
obscene, lewd, lascivious and filthy film preview entitled,
“Let Me Count The Lays” for the purpose of the sale and
distribution of said film.
COUNT-9
(Title 18, Sec. 371, USC)
THE GRAND JURY FURTHER CHARGES:
That beginning on or about August 1, 1970 and continu-
ing to February 27, 1973, in the Eastern District of Kentucky,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
A. 39
named as defendants herein, wilfully and knowingly did com-
bine, conspire, confederate and agree together and with each
other and with diverse other persons to the Grand Jury
unknown, to transport and cause to be transported in inter-
state commerce from the states of Michigan, Indiana and other
states to the Grand Jury unknown to Newport, Campbell
County, in the Eastern District of Kentucky, copies of obscene,
lewd, lascivious and filthy films, for the purpose of the sale and
distribution .of said films, in violation of Title 18, Section 1465,
United States Code.
It was part of said conspiracy that the defendants,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
would knowingly transport and cause to be transported in inter-
state commerce from the states of Michigan, Indiana and other
states to the Grand Jury unknown, to Newport, Campbell
County, in the Eastern District of Kentueky, copies of obscene,
lewd, lascivious and filthy films entitled, “Deep Throat,”
“Swing High,” film previews entitled, “Doctor's Disciples”,
“Teenage Cowgirls,” “Black on White,” “A Few Bucks More,”
“Memoirs of A Madam,” “Let Me Count The Lays” and various
other films and film previews to the Grand Jury unknown, for
the purpose of the sale and distribution of said films and film
previews.
It was further a part of said conspiracy that the defendants
and co-conspirators would misrepresent, conceal and hide and
cause to be misrepresented, concealed and hidden, the purposes
of and the acts done in furtherances of the conspiracy.
A. 40
OVERT ACTS
1. At the times herein after mentioned, the defendants
committed the following overt acts in furtherance of said con-
spriracy and to effect the objects thereof:
1. On or about a day to the Grand Jury unknown,
but between August 26, 1970 and September 30, 1970, in the
Eastern District of Kentucky, the defendants,
HARRY MOHNEY
STANLEY MARKS
DBA
CINEMA X THEATRE
caused a telphone, Number 581-9707, to be installed at 716
Monmouth Street, Newport, Kentucky.
2. On or about the 11th day of April 1973, in the
Eastern District of Kentucky, the defendants
AMERICAN AMUSEMENT COMPANY, INC.
caused the billing on the phone No. 581-9707 listed in Overt
Act | above to be changed from
“Cinema X Theatre
Mohney Enterprises
8250 E. Lansing Rd.
Durrand, Michigan 48429
to “Cinema X Theatre
c/o American Amusement Company, Inc.
P.O. Box 373
Durrand, Michigan 48429
3. On or about a day unknown to the Grand Jury, in
the Eastern District of Kentucky, the defendants,
EE
A. 41
HARRY MOHNEY
STANLEY MARKS
DBA
CINEMA X FHEATRE
716 Monmouth Street
Newport, Kentucky
between the dates of March 1, 1972 and March 31; 1972
caused a telephone, No. 291-9419 to be installed at Cinema X
Theatre, 716 Monmouth Street, Newport, Kentucky.
4. On or about the 11th day of April 1973, in the
Eastern District of Kentucky, the defendant,
AMERICAN AMUSEMENT COMPANY, INC.
caused the billing of the phone no. 291-9419 listed in Overt
Act 3 above to be.changed from:
? “Cinema X Theatre
c/o Mohney Enterprises
8250 E. Lansing Rd. :
Durand, Michigan 48429
to: “Cinema X. Theatre
c/o American Amusement Company, Inc.
P.O. Box 378
Durand, Michigan 48429
5. That on or about dates to the Grand Jury
unknown, but between the dates of August 26, 1970 and
February 27, 1973, in the Eastern District of Kentucky, the
defendants,
HARRY MOHNEY
STANLEY MARKS
_ DBA
CINEMA X THEATRE
716 Monmouth Street
Newport, Kentucky
A. 42
conversed in and inspected the Cinema X Theatre at 716 Mon-
mouth Street, Newport, Kentucky.
6. That on or about dates to the Grand Jury
unknown, but between August 26, 1970 and February 27,
1973, in the Eastern District of Kentucky, the defendants,
GUY WEIR
STANLEY MARKS
DBA
CINEMA X THEATRE
716 Monmouth Street
Newport, Kentucky
conversed in and inspected the Cinema X Theatre at 716 Mon-
mouth Street, Newport, Kentucky.
7. That on or about dates to the Grand Jury
unknown, but between August 26, 1970 and February 27,
1973, in the Eastern District of Kentucky, the defendant
GUY WEIR
inspected and helped repair projecting equipment at the Cinema
X Theatre, 716 Monmouth Street, Newport, Kentucky.
8. That commencing on or about the 26th day of
August and continuing until February 27, 1973, in the Eastern
District of Kentucky, the defendants,
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
booked and supplied obscene films to the Cinema X Theatre,
716 Monmouth Street, Newport, Kentucky, and various other
theatres to the Grand Jury unknown.
9. That commencing on or about August 26, 1970
A. 43
9. That commencing on or about August 26, 1970
and continuing to February 27, 1973, in the Eastern District
of Kentucky, the defendant,
STANLEY MARKS
DBA
CINEMA X THEATRE
716 Monmouth Street
Newport, Kentucky
operated the Cinema X Theatre, 716 Monmouth Street, New-
port, Kentucky.
10. That beginning on January 1, 1972 and con-
tinuing until December 31, 1972 in the Eastern District of
Kentucky, the defendant,
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
paid the salary of various employees of Cinema X Theatre, 716
Monmouth Street, Newport, Kentucky.
11. That on or about the 16th day of October, 1972,
the defendant,
AMERICAN AMUSEMENT COMPANY, INC.
sent a letter to the city of Newport in the Eastern District of
Kentucky about the city taxes on employees at Cinema X
Theatre, 716 Monmouth Street, Newport, Kentucky.
A. 44
12. That on or about the 20th day of January, 1973,
the defendant,
AMERICAN AMUSEMENT COMPANY, INC.
shipped a film by commercial air carrier from Durand, State of
Michigan, to Cinema X Theatre, 716 Monmouth Street, New-
port, in the Eastern District of Kentucky.
A TRUE BILL
/s/James A. Middleton
FOREMAN
EUGENE E. SILER, JR.
UNITED STATES ATTORNEY
By: /s/James E. Arehart
Assistant United States Attorney
A. 45
MEMORANDUM
(Filed October 5, 1973)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON
NO. 11,057
UNITED STATES OF AMERICA PLAINTIFF
v.
STANLEY MARKS dba Cinema X
Theatre, et al DEFENDANTS
MEMORANDUM
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 con-
fiscated 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 evi-
dence 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.
A. 46
Motion to Suppress
This motion, filed only on behalf of Marks, seeks the
suppression and return of the films generative of this prosecu-
tion. The defendant assails the scope and manner of inquiry
utilized prior to seizure as well as the First Amendment depriva-
tions allegedly occasioned by the confiscation.
This court is unable to discern any defect in the Magis-
trate’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
Court 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 affida-
vits condemned in Marcus v. Search Warrant, 367 U.S. 717
(1961) and Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636
(1968). The procedure employed clearly allowed the Magistrate
to “focus searchingly on the question of obscenity”’, as required
by Marcus, supra at 732.
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, _.. U.S. , NO. 71-1043 (June 25,
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 pos-
sible censorial effect of seizing items not yet ruled obscene:
A. 47
“(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 9. 4
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 th defendants’ failure
to satisfy the prerequisites outlined in Heller.
The claim that the absence of a constituitional standard
of obscenity prior to Miller rendered the Magistrate’s proceed-
ings 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 admit-
tedly 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 transporta-
tion 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
A. 48
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 $5,000 or imprisoned not more than five
years, or both.” 18 U.S.C. 1465.
It is well understood that obscenity is undeserving of constitu-
tional protection, Miller v. California, ) es |
70-73 (June 21, 1973); Roth v. United States, 354 U.S. 476
(1957); rather, the defendants’ attack relates primarily to
definitional terms utilized in the statute. This criticism is
unwarranted in view of Roth v. United States, supra, and
United States v. Orito, US. , NO. 70-69 (June 21,
1973), which rebuked challenges leveled against substantially
identical language in 18 U.S.C. 1461 and 1462. See also
United States v. Cote, Sth Cir., 470 F.2d 755 (1972). A
statutory provision will not suffer constitutional invalidation
merely because of a lack of complete precision. The fact that
certain conduct may fall on either side of legislative terms
descriptive of an offense is not fatal so long as an adequate
warning of sanctioned activity is conveyed. Roth v. United
States, supra at 491-492. The Court in Nash v. United States,
229 U.S. 373, 377 (1913), recognized that many equivocal
acts require a forecast of a jury’s subsequent reactions:
“(T)he law is full of instances where a man’s fate
depends on his estimating rightly, that is, as the
jury subsequently estimates it, some matter c
degree. If his judgment is wrong, not only may he
incur a fine or short imprisonment . . . he may incur
the penalty of death.”
See also United States v. Wurzbach, 2& U.S. 396 (1930).
The constitutionality of 18 U.S.C. 1465 is not weakened
by the Supreme Court decisions in Miller v. California, supra,
and accompanying cases. Although these opinions did clarify
the earlier disputes surrounding the obscenity question, it
A. 49
would be simplistic to abandon all earlier attempts in the same
direction. The impropriety of such an action is revealed in
United States v. Orito, supra, affirming the constitutionality
of 18 U.S.C. 1462, and United States v. 1? 200 foot reels,
"S$. —_._., NO. 70-2 (June 21, 1973), where the Court
indi: . 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 con-
struction. Frank v. Mangum, 237 U.S. 309 (1915); United
States v. Rundle, 3d Cir., 383 F.2d 421 (1967), cert. denied
393 U.S. 863 (1968). Although Bouie v. City of Columbia,
378 U.S. 347 (1964), did hold that a retroactive appiication 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
indefensibe by reference to the law which had been expressed
prior to the conduct in issue . . .”.” Id. at 354. 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, 16! U.S. 29 (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.
A. 50
The defendants cite in support of this argument United
States v. Lang, C.D. Cal., NO. 10712-HP-CD (June 25, 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., NO. 71-1346 (July 5, 1973); United States v.
Wasserman, W.D. Tex., NO. A-72-CR-71 (July 25, 1973);
United States v. Pinkus, C.D. Cal., NO. 11444-DW-CD (July 16,
1973); United States v. Hill, S.D. Fla., NO. 73-347 Cr.-NCR.
The attack upon the indictment itself is similarly mis-
placed. The allegation of invalidity due to the absence of
evidence relating to obscenity before the grand jury is without
merit. The validity of an indictment is ascertained on its face,
not through a probing reappraisal of the evidence before the
grand jury; the implementation of such a course would
ultimately result in a preliminary trial conducted before the
grand jury:
“If indictments were to be held open to challenge on
the ground that there was inadequate or incompetent
evidence before the grand jury, the resulting delay
would be great indeed. The result of such a rule
would be that before trial on the merits a defendant
could always insist on a kind of preliminary trial to
determine the competency and adequancy of the
evidence before the grand jury. This is not
required . . . An indictment returned by a legally
constituted and unbiased grand jury .. . if valid on
its face, is enough to call for trial of the charge on
the merits.” Costello v. United States, 350 U.S.
359, 363 (1956).
The claim that the nonexistence of evidence relating to
scienter warrants dismissal reveals a misunderstanding of the
underlying statutory requirements. The federal obscenity pro-
visions do not require a personal belief on the part of the
A. 51
accused that challenged material is obscene; reliance on Smith
v. California, 361 U.S. 147 (1959), is misplaced since
“Smith has not been interpreted to require that the
defendant know the material to be obscene, but
merely know what the material contains, leaving legal
rulings to the courts.” United States v. Gundlach,
M.D.Pa., 345 F. Supp. 709, 717 (1972).
The arguments generated by alleged procedural abuses are
easily disposed of. First, the defendants attack the government’s
failure to accord a hearing on the question of obscenity prior .<
the return of the indictment. Although a hearing is mandated
prior to the seizure of materials, Marcus v. Search Warrant, 367
U.S. 717 (1961); Cambist Films, Inc. v. Tribell, E. D. Ky., 293
F. Supp. 407 (1968), there is no requirement for such a process
as a condition precedent to the return of an indictment. It
further appears that the scope and manner of the hearing
satisfied the requirement for an independent judicial evaluation
of obscenity. The Magistrate did not view the films in question;
however, affidavits describing the factual occurrences portrayed
in the movies and prepared by agents who had been exposed to
the material were presented to the Magistrate.
The defendants finally claim that the twelve overt acts
delineated in the indictment are not sufficient to support a
conspiracy charge under 18 U.S.C. 371; the court disagrees.
Although the separate actions viewed in an isolated manner
reflect a semblance of innocent conduct, a pragmatic examina-
tion of these allegations immunizes this charge from dismissal.
Examination of the conspiracy count reveals that it alleges
both an unlawful purpose and overt acts manifesting the
implementation of a conspiracy. United States v. Root, 9th Cir.,
366 F.2d 377 (1966), cert. denied 386 U.S. 912 (1967); United
States v. Offutt, D.C. Cir., 127 F.2d 336 (1942). While the
commission of an overt act must be alleged and proven, the act
itself does not comprise the offense. Hudspeth v. McDonald,
A. 52
10th Cir., 120 F.2d 962 (1941), cert. denied 314 U.S. 617
(1941). In United States v. Turner, E.D. Tenn., 274 F. Supp.
412 (1967), the court was confronted with an allegation similar
to that forwarded herein:
“These defendants also move to strike paragraphs 2
and 4 of count | on the ground they do not charge
the defendants with the commission of unlawful
acts. This is not necessary. Many overt acts that
are committed in pursuance of the conspiracy may
be lawful. Only one overt act whether lawful or
unlawful committed in pursuance to a conspiracy is
sufficient.” Id. at 415.
The court is convinced that the defendants were adequately
apprised of the charge.
An order will be entered overruling the motion to dismiss.
Motion for Discovery
The defendants seek through this motion any evidence
possessed by the Government which might possibly be used in
this prosecution, including, but not limited to: (1) memoranda
or statements by the defendants or their agents concerning the
facts of this action; (2) grand jury testimony; (3) tangible
objects taken from the defendants; (4) eavesdropping evidence
obtained through electronic means; (5) memoranda or conduct
of any person which generated the arrest of these defendants;
(6) any records formulated during the past two years pertaining
to obscenity investigations by the Government.
An anlaysis of this motion requires recognition of the
different standards of proof which the defendant must satisfy
to secure various forms of evidence. Rule 16(a), Federal Rules
of Criminal Procedure, provides that the court, upon motion
of the defendant, “may” order the production of: (a) written
Statements by the defendants; (b) reports of physical and
A. 53
scientific tests and examinations; (c) the defendant’s recorded
testimony before the grand jury. Although conilict exists as to
whether this information is available as a matter of right and
without a showing of need, 1 Wright, Federal Practice and
Procedure, Section 253, pp. 500-503, notes 33-35, there
appears no justification for denying such information in the
case at bar. See United States v. Turner, E.D. Tenn., 274 F.
Supp. 412 (1967).
For the reasons noted in the discussion of the motion to
inspect the grand jury minutes, the defense is entitled to inspect
any statements or grand jury testimony offered by the defen-
dants on their corporate officers or employees acting in
response to subpoenae directed to the corporation, but not evi-
dence relating to the testimony of other persons.
Rule 16(b) allows the defendant access to tangible objects
in the possession of the Government only upon a demonstration
of materiality and reasonableness. Aside from a bare prefatory
allegation that these requirements are present, the defendants
claim that production of such material will: (1) protect the
defense against illegally seized evidence; (2) provide a fair trial;
(3) guarantee proper confrontation with witnesses; (4) enable
effective assistance of counsel; (5) insure that all relevant evi-
dence will be brought before the court; (6) either dispense with
or shorten the trial. These arguments offer scant improvement
over the broad statement offered above, and do not begin to
furnish the standard of proof envisioned by the Rule.
“(T)he requirement of Rule 16(b) of a showing of
the reasonableness and materiality of the request is
not satisifed by a mere conclusory allegation that the
requested information is material to the preparation
of the defense.”” United States v. Conder, 6th Cir.,
423 F.2d 904, 910 (1970).
It is unnecessary to entertain the propriety of the demand
for electronically intercepted information since the Government
has responded that such methods have not been utilized in this
case.
A. 54
The requests in items five and six are denied. Although
current rules envision ready availability of many items upon
proper compliance by che defendant, matters identified with
the investigatory phase of a case are protected;
“this rule does not authorize the discovery or inspec-
tion of reports, memoranda, or other internal
government documents made by government agents
in connection with the investigation or prosecution
of the case, or of statements made by government
witnesses or prospective government witnesses .. .
to agents of the government .. . ” Rule 16(b),
Federal Rules of Criminal Procedure.
It is obvious that a demand for memoranda or conduct of
individuals which ‘ostered this prosecution falls squarely within
the exclusion above. United States v. Wilkerson, 6th Cir., 456
F.2d 57 (1972); United States v. Turner, supra. The final
request is patently impermissible as a bald attempt to invade the
Government’s “work product’’, not only in this case, but in all
similar investigations throughout the country. See Gollaher v.
United States, 9th Cir., 419 F.2d 520, 527-528 (1969), cert.
denied 396 U.S. 960 (1969).
Motion for Bill of Particulars
The numerous requests forwarded in this motion can
easily be classified into three major areas: (a) the legal theories
upon which the Government expects to rely; (b) a detailed nar-
ration of the exact manner in which the criminal acts occurred;
(c) the names of any witnesses to the commission of this
offense; (d) past offenses of the defendants.
The extreme breadth of this motion illustrates an apparent
misconception of the purpose of a bill of particulars: It is not a
discovery device intended to disengorge evidentiary matter, but
a discretionary aid designed to
A. 55
“provide defendant with information about the
details of the charge against him if this is necessary to
the preparation of his defense, and to avoid
prejudicial suprise at the trial . . .
The test in passing on a motion for a bill of
particulars should be whether it is necessary that
defendant have the particulars sought in order to pre-
pare his defense and in order that prejudicial suprise
will be avoided. A defendant should be given enough
information about the offense charged so that he
may, by the use of diligence, prepare adequately for
the trial. If the needed information is in the indict-
ment or information, then no bill of particulars is
required.” 1 Wright, Federal Practice and Procedure,
Section 129, at pp. 283-284.
The defendants’ requests for governmental interpretations
of obscenity statutes and court decisions are denied. A bill of
particulars is not intended to inform the defendant of the
prosecution’s legal theories or conclusions. Similar demands
were refused in United States v. Luros, N.D. lowa, 243 F. Supp.
160, 172 (1965), cert. denied 382 U.S. 956 (1965):
“Paragraphs 1 and 2 of the defendants’ motion ask
for the definitions of the words ‘obscene’, “lewd’,
‘lascivious’, ‘indecent’, and ‘filthy’. The Government
is not required to state the definitions of legal terms.”
See also United States v. Bearden, Sth Cir., 423 F.2d 805
(1970), cert .denied 400 U.S. 836 (1970).
The last two requests must also be denied. Although there
may be circumstances in which a list of witnesses should be pro-
duced, Will v. United States, 289 U.S. 90, 99 (1967), there has
been absolutely no indication that this request has a legitimate
foundation. See United States v. Rimanich, 7th Cir., 422 F.2d
817, 818 (1970); Hickman v. United States, 5th Cir., 406
A. 56
F.2d 414 (1969), cert. denied 394 U.S. 414 (1969). The request
for information of defendants’ of witnesses’ prior crim‘nal
records is equally unavailing as this information considerably
surpasses the scope of a bill of particulars. United States v.
Johnson, N.D. Ill., 298 F. Supp. 58, 62 (1969); United States
v. Mavrogiorgis, S.D.N.Y., 49 F.R.D. 214 (1969).
An order will be entered overruling this motion.
Motion to Inspect Grand Jury Minutes
This motion seeks any recorded grand jury proceedings,
including testimony of the individual defendants and officers
or employees of the corporate defendants; the movants alter-
natively seek a summary of the evidence presented if the grand
jury sessions were not transcribed.
The availability of grand jury testimony is partially
governed by Rule 16(a), Federal Rules of Criminal Procedure:
“Upon motion of a defendant the court may order
the attorney for the government to permit the
defendant to inspect and copy or photograph any
relevant . . . (3) recorded testimony of the defendant
before a grand jury.”
Although this Rule is cast in discretionary terms, the prevailing
authority favors permitting the defendant inspection of his own
grand jury testimony. United States v. Turner, supra; 1 Wright,
Federal Practice and Procedure, Section 253, pp. 507-508.
Further, this court is included to follow the approach adopted
in United States v. Aeroquip Corporation, E.D. Mich., 41
F.R.D. 441 (1966), regarding the accessibility of officers’ and
employees’ testimony:
“(T)he court adopts a limited construction of Rule
16(a) (3) to permit at this time, as a matter of right,
pretrial disclosure to a corporate defendant only of
A. 57
the grand jury testimony of corporate officers, who
were officers at the time they so testified and of
individuals who testified before the grand jury in
response to subpoenas duces tecum directed to the
corporation.” Id. at 446.
United States v. Louis Carreau, Inc., S.D.N.Y., 42 F.R.D.
408 (1967).
A demand for the grand jury testimony of other witnesses
is governed not by the permissive Rule 16(a), but by the more
restrictive provisions in Rule 6(e), Federal Rules of Criminal
Procedure. Despite the tendency of recent cases to abandon the
heavy burden formerly placed upon the movant, see | Wright,
Federal Practice and Procedure, Section 108, some showing of
“particularized need” must still be offered before the
production of grand jury testimony will be directed; this court
rejects bare allegations that the material is required to
adequately prepare for trial or to furnish grounds for dismissal.
United States v. Hensley. 6th Cir., 374 F.2d 341 (1967), cert.
denied 388 U.S. 923 (1967).
Dennis v. United States, 384 U.S. 855 (1966), noted by
the defendants, does not propound the expansive posture urged.
Although the Supreme Court recognized the potential injustice
of the strict rules previously cited to withhold such informa-
tion, that opinion did not command the dissemination of grand
jury evidence merely upon demand.
The alternate request — for particulars if the grand jury
testimony was not transcribed — is denied. The specific
particulars sought relate not to the defendants’ testimony, but
to the question of whether evidence of “community standards,”
“dominant appeal,” “prurient interest,”” and the like were
presented. Further, summaries of unrecorded proceedings pre-
pared by government officiers are no less confidential than the
deliberations themselves. U.S. Industries, Inc. v. United States
District Court, 9th Cir., 345 F.2d 18 (1965), cert. denied 382
U.S. 814 (1965).
A. 58
The defendants’ allegations are not sufficient to shatter
the traditional secrecy accorded grand jury proceedings. An
order will be entered sustaining this motion only as to the
request for testimony by the defendants or their corporate
officers or employees pertaining to the affairs of the defendant
corporations.
Motion for Production of Evidence
Favorable to Accused
A motion characterized in this manner must be identified
as little more than a “fishing expedition.’’ The courts have
agreed that requests incorporating this language are not contem-
plated by Rule 16, Federal Rules of Criminal Procedure; Wright
comments that “general motions seeking discovery of anything
in the possession of the government favorable to the defense
have received a cold reception from the courts.” 1 Wright,
Federal Practice and Procedure, Section 254, at page 515. Such
a welcome was extended by the Sixth Circuit in United States
v. Moore, 6th Cir., 439 F.2d 1107, 1108 (1971):
“To grant such a motion would place an almost
impossible burden on the Government. The motion is
not even limited to evidence in the possession of the
Government. The Government would have to deter-
mine before the trial whether the evidence is
favorable as well as relevant. If this pretrial practice
were adopted, there would be little left of our
adversary system. It must be remembered that in
criminal cases the defendant is not required to dis-
close anything.”
The specific requests proffered by the defendants are discussed
above; a favorable ruling on this motion would result in the dis-
engorgement of many materials not made discoverable by even
the broadest interpretation of the Criminal Rules.
/s/Mac Swinford, Judge
October 5, 1973
A. 59
JURY INSTRUCTIONS
see ee 48
(T. 842) (The Court) Now, the defendants did not take
the witness stand and as I have stated to you I think the law
requires that I given an instruction on that unless it is
requested expressly that it not be given and I told you what
my instruction would be in general terms.
What do you want to do about that?
(Mr. Dennison) Your Honor, I request that no instruction
be given relative to the absence of the Defendant Marks to
take the witness stand or to testify in his own behalf, relying
upon the general instruction of the Court as to the burden of
proof resting upon the government and that there is no duty
of proof upon the defendant, without a comment relative to
failure to testify.
(The Court) All right.
(Mr. Deitch) We concur, Your Honor.
(Mr. Albert) The corporate (T. 843) defendant American
News agrees.
(Mr. Smith) I agree.
(The Court) In other words, you do not want the express
instructions that the witnesses did not take the witness stand
and that is not considered as any admission of guilt on their
part. In other words, you do not want the words “did not
take the witness stand” used at all; is that correct?
(Mr. Smith) Yes, sir.
(The Court) Very well. I will make no reference to it at
all except in the general proposition that it is the
responsibility of the government to prove its case.
A. 60
(Mr. Smith) Yes, sir.
(The Court) Now, I have one other instruction here which
I propose to give and which my study of these instructions
offered by the respective sides does not adequately cover.
“You have been instructed on the basis of how a
corporation can be held criminally liable on a charge of
obscenity as set forth in the indictment; that is, only through
its officers and agents under conditions which I have stated.
This does not mean that the officers and agents under
conditions which I have stated. This does not mean that the
officers and agents may be cleared of wrongdoing in the event
the corporation (T. 844) “is found guilty. The officers and
agents, such as Mr. Weir and Mr. Mohney, may also be held
accountable and thereby personally guilty of wrongdoing and
if you believe from all the evidence or reasonable inferences
that may be drawn from the evidence, to the exclusion of a
reasonable doubt, that these defendants, Weir and Mohney, or
either of them, knowingly and intentionally, either acting
personally or causing another or others to act to effect the
transportation of obscene films in interstate commerce from
outside the State of Kentucky to this Eastern District of
Kentucky for the purpose of sale or distribution, they may be
found to be individually and personally guilty as charged in
this indictment.”
Now, I am going to give that instruction. I will make a
correction here. I say “‘obscene films”. I may identify that,
make it apply to who is in the proof described, if you
believed that they are obscene. In other words, that doesn’t
mean that some other thing has to be in the evidence in this
case.
(Mr. Smith) May it please the Court, this is the first time
that we have been exposed to the Court’s instructions in this
regard and on behalf of Mohney I would merely say to the
Court at this (T. 845) point that the Court by the way it read
the instruction is suggesting that the Court has found that the
A. 61
evidence shows that Mohney was an officer or agent of the
corporation. I think the Court sort of assumes in its
instructions saying to the jury: “If you find that any of the
individuals here, individual defendants, acted as officers and
agents of the corporation, you may also find them
individually guilty.”
Does the Court follow my reasoning?
(The Court) I follow your line of reasoning. I do not put
that connotation on it. You do object to it.
(Mr. Smith) I will at the proper time. I just wanted to
advise you.
(The Court) I wanted to advise you of this before you
made your argument, but I propose to give that instruction.
Now, gentlemen, that concludes our pretrial conference
for this morning as far as | am concerned. Is there anvthing
else you want to bring up at this time?
(Mr. Smith) Yes, Your Honor, I understand that it is the
local practice and tradition for the government to be allowed
to go last and not open and close, and we would for the
record, since (T. 846) there is some division of authority in
various circuits, contend that the government should be
required to make a presentation and that it will be unfair to
the defendants to have the government have the last word of
its last argument, because we can’t rebut anything whatsoever;
what the government says in its argument when we are
deprived of that right and the government can say everything
it wants and we can make no response and if the Court
proposes to follow that procedure, we will say that it is
deprivation of our client’s Fifth and Sixth Amendment rights.
(The Court) What do you have to say, Mr. De Falaise?
Do you speak for all defendants?
A. 62
(Mr. Smith) Yes.
(Mr. DeFalaise) I think the rule has been, whatever
division the rule is in other circuits, the rule in this circuit is
that the United States puts on its case first but has the last
closing argument and I believe at this point in time to vary
this rule would be a serious deprivation of the outstanding
rights of the United States.
(Mr. Smith) Well, I just heard about this rule this morning
and I didn’t have a chance (T. 847) to do research.
(The Court) That is the common law rule. The practice in
Kentucky and in states generally under the old conformity
rules of state practice ignored that rule. I am inclined to think
that the objection is well taken. That doesn’t mean that you
have to give a full and complete argument of the case, but
you do have to make a fair statement of your case. I am not
putting you on terms as to time, but that means that you are
to make a fair statement of what you rely on for a conviction
and you may save the bulk of your arguments until your final
argument, but I might also advise you that if you make an
opening statement then the defense has a right to decline to
put on any argument and that’s it, you can’t come back.
(Mr. Smith) If the Court please, will the Court be giving
us a brief period of time to look at what the Court has ruled
on before we have to argue?
(The Court) Yes.
(Mr. Smith) Thank you.
(The Court) I am going to take a recess now in light of
my statement here.
(Reporter’s note: The Court recessed for ten minutes. (T.
848) At the conclusion of the recess the defendants were
A. 63
present with their counsel, the United States was represented
by counsel, the jury resumed its place in the box. Opening
argument was made in behalf of the government by Mr.
DeFalaise. Closing arguments were made in behalf of the
respective defendants by their counsel. Closing argument was
then made by Mr. DeFalaise in behalf of the government.)
(The Court) Members of the jury, in order that you might
be fully advised of our situation here, it is now a quarter of
five. It will be necessary for me to instruct you tonight. It
may take a little time to do it. I will make it as rapid as I can
without overlooking anything, I hope. This is an involved case
and one which requires some considerable rules of law to be
given to you. I don’t want to make it confusing to you and I
assure you that I won’t make it confusing to you. I don’t
want you to get the impression that this is so involved and so
many technical terms used here that you are not qualified to
decide the case, because that is not true. You are qualified to
decide the case. This is a jury case. | don’t know of a better
type case for a conscientious jury to consider than this one.
Before I conclude I will make the issue which you will have
(T. 849) to decide very sharp. You will have no trouble in
recognizing it, you will have no difficulty in applying the
rules of evidence to the evidence, as I shall give them to you,
and I am confident that you can arrive at a fair and a just
verdict.
I am going to instruct you this evening, so tomorrow
morning at 9:00 o’clock I can submit the case to you without
any additional delay and you will have full opportunity to
consider all of the evidence in the case, the whole case,
without being under any pressure of time.
Now, in the first place I want to get back on the track a
little bit. We have heard about five hours of argument, all of
which I am sure was enlighting and helpful, but I do want to
remind you that you are not to decide whether you like this
law or don’t like it. It is the law of the land. Considerable
argument was made along the line that a person should be
A. 64
able to do what he wanted to do, so long as he wasn’t
interfering with anybody else. Now, whether he is interfering
with anybody else is a factual situation which we must
consider as having been considered by the Congress and its
committees before this law was enacted. This is the law of the
land and I am going to read it to you. So (T. 850) you are
not to treat it lightly on the assumption that, “what harm is
it doing anybody so long as they don’t pay to go see these
pictures?” I don’t know and I am not going to undertake to
even suggest what the reason for the Congress were in
enacting this statute. It is a statute which has been on the
books, adopted by members of both houses of Congress,
signed by the president of the United States at the time it
was enacted and it is the law of the land. So we are not to
concern ourselves with the fact that this is in viociation of the
First Amendment because it is not a violation of the First
Amendment. I state that to you categorically and it is treated
as a constitutional law so long as it is on the statute books
and until the courts of the land declare it unconstitutional
and it has been declared constitutional. So we start with that,
not with any idea of belittling the law. This is a solemn
enactment of Congress and you as jurors are sworn to uphold
it.
Now, in order that there might not be any
misunderstanding, this is not a state law in this case. There is
a similar state law, or maybe a similar state law or one
involving the same thing, but this is a law of the United
States and it simply says that: “any obscene, lewd, lascivious,
or filthy (T. 851) book, pamphlet, picture, film, paper, letter,
writing, print, electrical transcription or other article capable
of producing sound or any other matter of indecent or
immoral character” shall not be transported in interstate
commerce.
That is the law, that is what you are going to try this
case on, to determine from this evidence in the light of the
instructions which | will give you and all reasonable inferences
may be drawn from the evidence whether or not these
A. 65
defendants or any of them have violated that law within the
meaning of the law and under the terms which I shall give
you, meaning that their guilt must be established to your
satisfaction.
You will probably hear this more than once throughout
this instruction, “must be established to the exclusion of a
reasonable doubt”’, as that term will be defined to you.
I make this statement at the outset of these instructions
in order that we might not confuse ourselves with whether we
like the law or dislike the law. I think I questioned you about
that at the outset and it was indicated by me that you were
not to consult your own personal feelings, but that you were
to accept the law and determine whether (T. 852) or not it
had been violated under the evidence.
Now, members of the jury, these defendants and each of
them are presumed to be innocent until their guilt is
established to your satisfaction to the exclusion of a
reasonable doubt. That presumption of innocence starts with
them, and each of them, at the outset of the trial and
continues with them throughout the trial and if on the whole
case you have a reasonable doubt of their having been proven
guilty, then you should find those defendants or that
defendant to whom you entertain such reasonable doubt not
guilty.
The term “reasonable doubt” may be considered as I shall
read it to you from this statement which I give here as a
statement of law.
The defendants on trial in this case must be proven guilty
by evidence offered by the United States, which has the
burden of proof to establish the alleged guilt oi the
Defendants on trial in this case and the burden the
Government assumes in the beginning and carries throughout
to the end, until it has met it by showing to you the guilt of
the Defendant, beyond a reasonable doubt. The Defendants,
A. 66
having entered pleas of not guilty, are deemed to be innocent.
This presumption of (T. 853) innocence attends and prtoects
the Defendants throughout the trial, until it has been met and
overcome by evidence produced by the Government which
shows and establishes the Defendants’ guilt, beyond a
reasonable doubt.
A reasonable doubt exists in any case when, after careful
and impartial consideration of all the evidence, the jurors do
not feel convinced that a defendant is guilty of the charge. A
defendant cannot be convicted upon mere _ suspicion,
conjecture or speculation on the part of the jury.
In the present case, the burden of proof is upon the
Government to establish every part of its case, beyond a
reasonable doubt, and if any part of it, you are left in doubt,
the Defendants or any one of them are entitled to the benefit
of doubt and must be found not guilty or acquitted.
In other words, a reasonable doubt is best defined by a
use of the term itself. A reasonable doubt is a doubt based
upon reason, not some inconsequential doubt that might flit
through the mind of a juror, not some slight mental
hesitation, but a doubt for which there is reason, such doubt
as might guide you in determining the more important or
every day affairs of your own (T. 854) existence. The United
States is required to prove its case beyond a reasonable doubt;
it is not required to prove its case beyond all doubt. Few
things afe capable of proof to absolute certainty and if it
were required that the United States should remove all doubt
from the minds of each of twelve jurors before a conviction
could be had, it would be practically impossible to enforce
the criminal laws. And while the defendant is protected, as I
say, by the laws which requires the United States to prove its
case beyond a reasonable doubt, it is not an irrational doubt,
it is not an unreasonable doubt, but a doubt for which there
is reason. If you have such a doubt, then you should find the
defendant or the defendants, or that defendant as to whom
A. 67
you entertain such doubts not guilty. If you do not have such
a doubt, it is your duty to find them guilty.
A unanimous verdict is required. You will elect one of
your number foreman and the foreman will sign the verdict
for the jury. You cannot arrive at your verdict by holding a
primary election or taking a majority or any other percentage
of the jurors, but it must be the verdict of each juror. Our
system of justice presumes that twelve (T. 855) disinterested
citizens of a given community or district, who know nothing
about the case that they are called upon to try, never heard
of it, know nothing of the defendants or have no particular
interest in protecting or offending any of the accused, that
twelve citizens can sit together under identical circumstances
and hear witnesses testify, have the whole atmosphere of the
trial in the case, hear the respective arguments, on the
respective sides and the instructions given by the Court, and
by discussing that together, the evidence and the facts of the
case together, can arrive at a fair and a just decision.
Consequently, it is presumed that intelligent and
disinterested citizens who sit upon a jury will approach the
determination of a very serious problem. This is a serious
case, it is serious for the defendants, it is serious for the
United States, not to be taken lightly, and when you go to
your jury room you are instructed that you should give due
regard to the reasoning, recollection, arguments, discussion of
your fellow jurors.
I have never sat on a jury but I have known people who
have and I have been told (T. 856) that at times you go to
the jury room and some one or more of the jurors will
immediately announce what the verdict should be and they
will stay there all day or all night, or some other extravagant
statement, mistaking I am afraid hard-headedness and
stubbornness for strong-mindedness. So when I sav that the
verdict is to be unanimous, that means that it should be the
verdict of each juror but you should not reach a quick
decision or take an arbitrary or uncompromising stand until
A. 68
you have given the case full consideration in the light of the
discussion among your fellow jurors.
You have to realize, of course, that it is important to
decide this case. The United States Attorney has discharged
his duty, the defense counsel has discharged their duties, the
regular attaches of the Court have gone about and discharged
their functions here. I am giving you the instructions of the
law and it will be your duty if you can conscientiously do so
under the law to decide the case. I do not mean to suggest
that you should forego your own convictions in any sense,
although you may be the only juror that sees the case as you
see it and you have a duty to adhere to that conviction if it is
arrived at after (T. 857) consideration, as I have outlined
those steps, even though your fellow jurors may not agree
with you. However, you are to also realize that there are
twelve people on the jury and the system anticipates that
twelve people, as I say, can possibly with some resilience on
the part of all of them, make a conclusion of the case.
The indictment in this case is composed of nine separate
counts. A count in an indictment is a separate charge. In
other words, this could have been nine different indictments.
Instead of that it was brought in one indictment, in nine
different counts or charges. And so you will treat each count
separately as it applies to each defendant. I will give you a
form of verdict here which will make it an acceptable method
whereby you may express yourself. You are not going to have
to do an awful lot of writing or anything of that kind, but
you are to treat each defendant separately, determine his guilt
or his guilt on each count of the indictment separately.
The indictment itself is not of any evidential value; it is
merely the charge. The United States is put upon the
responsibility of proving all of the allegations in this
indictment. (T. 858) The defense is not required to offer
proof of anything. The responsibility rests upon the United
States after a plea of not guilty, which has been entered in
this case, to each count of this indictment, by each of the
defendants, thereby categorically denying the charges set forth
A. 69
in the indictment. You are not to say or assume that because
there is an indictment that that of itself is some evidence of
guilt; it is not and is not to be so treated.
Now, the matter of penalty in the federal courts is
different from the state court. Possibly some of you have
served on juries in state court. In the criminal trial in state
court the jury determines the guilt or innocence of the
accused and if the defendant is found guilty, if they find that
the defendant is guilty, make that as their verdict; then they
have the further responsibility of fixing the penalty. Now, in
the federal courts that is not the law. Your responsibility
stops when you determine the guilt or innocence of each of
these defendants as it pertains to each count in the
indictment. The matter of penalty addresses itself entirely to
the trial judge, who in the light of his knowledge, experience,
various methods by which he qualifies (T. 859) for that
function, fixes the penalty. And so when you have decided
the defendant is not guilty, if you do decide that as to any of
them, then that concludes that case as to that defendant. If
you decide that any or all of the defendants are guilty, then
you have concluded your work as a juror and the matter of
penalty addresses itself to the trial judge.
In the federal court it is the privilege and somie time the
duty of the trial judge to comment on the evidence. I do not
propose to do that to any great extent, at least, but if I
should you are not to accept what I may say as all of the
evidence in the case. I certainly will not presume to review all
of the evidence in this case of these past two weeks. You are
not to accept what I may say as all of the important evidence
or all of the important evidence on a given point. You may
not accept what I will say, if I do refer to the evidence, as
necessarily true. I would not intentionally make 2
misstatement, but you are the triers of the facts and it will be
for you to determine what the evidence is and what
reasonable inferences may be drawn from it.
A. 70
The law considers two types of (T. 860) evidence, direct
evidence and circumstantial evidence. In this case the essential
facts to be established to your satisfaction to the exclusion of
a reasonable doubt start out with the proposition that this
was an interstate transaction. That is what makes it a federal
case, that is, it is charged in this indictment that these
defendants either did this themselves or caused it to be done,
to transport these films in interstate commerce from some
place outside of the Eastern District of Kentucky and outside
of Kentucky into the State of Kentucky and into this
District. Now, naturally, as I think it has been referred to
here, the United States cannot produce — at least it hasn’t
produced — and it would be impossible, I assume, for it to
produce a witness who actually saw these films being brought
across the river from Ohio or any place else into Kentucky.
And so, of course, if someone was seen carrying this film,
with the name of the film “Deep Throat” and these other
names on it, carrying it across the river, that would be direct
evidence.
And so, the United States not having that kind of witness
must rely on what is known as circumstantial evidence.
Circumstantial (T. 861) evidence may be just as strong as
direct evidence if you believe from the surrounding facts and
circumstances that it establishes the fact. So you are advised
that direct evidence is where a witness testifies to what he
saw, heard or observed, what he knows of his own knowledge,
something which comes to him by virtue of his senses.
Circumstantial evidence is evidence of facts and
circumstances from which one may infer connected facts
which reasonably follow in the common experience of
mankind. Stated somewhat differently, circumstantial evidence
is that evidence which tends to prove a disputed fact by proof
of other facts which have a logical tendency to lead the mind
to a conclusion that those facts exist which are sought to be
established.
A. 71
Circumstantial evidence, if believed, is of no less value
than direct evidence for in either case you must be convinced
beyond a reasonable doubt of the guilt of the defendant or
defendants.
That is about all there is to circumstantial evidence. You
infer, on the basis (T. 862) of reason and experience, from an
established fact, the existence of some further fact. There are
times when different inferences may be drawn from the facts.
Whether they are proved by direct or circumstantial evidence,
the government asks you to draw one set of inferences, while
the defendant asks you to draw another. It is for you to
decide, and for you alone, what inferences will be drawn.
Now, in the law one who aids or assists another in the
commission of an offense is equally guilty with the principals.
So you are instructed this statute applies in this case and it is
a proper instruction to give to you:
“Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.
“Whoever willfully causes an act to be done which is
directly performed by him or another would be an
offense against the United States, is punishable as a
principal.” |
/
It is not necessary for the (T. 863) Government to show
that each defendant physically committed the crime himself.
Section 2 of Title 18, United States Code, provides that a
person who aids and abets another to commit an offense is
just as guilty of that offense, as if he committed it himself.
Accordingly, you may find beyond a reasonable doubt that
one defendant committed the offense and that the other
defendant aided and abetted him.
To determine whether a defendant aided and abetted the
commission of an offense, you ask yourselves these questions:
A.72
Did he associate himself with the venture? Did he participate
in it as something he wished to bring about? Did he seek by
his action to make it succeed? If he did, then he is an aider
and abettor.
Now, this ninth count in the indictment charges a
conspiracy. The law provides as follows, and I will read it to
you:
“If two or more persons conspire . . . to commit any
offense against the United States . . . and one or
more of such persons do any act to effect the object
of the conspiracy, each is guilty of an offense against
the United States.”
(T. 864) Now, I know “conspiracy”, the term sounds
legalistic, but it is very simple. It is an everyday term. We all
generally know what a conspiracy is, a combination of more
than one person, two or more people, combined to carry out
a given purpose, a very terse definition of conspiracy in the
law is: a conspiracy is an agreement between two or more
persons to commit an unlawful act or to commit a lawful act
in an unlawful way.
Now, the conspiracy charged in this indictment is that
these defendants, all four of them, or all five of them, the
individuals and the corporate defendants, entered into a
conspiracy. That does not mean that the United States has to
show that they sat down around the table and drew up a
formal document or by discussing said, “We will all form a
conspiracy and we will do this, that and the other to effect a
violation of this statute by transferring from one state into
this District in Kentucky a film which is made unlawful by
law.”” That would be the perfect conspiracy if you had some
eye witness to prove that that was done. Naturally that is a
little extreme. And so the United States (T. 865) must rely
on numerous, or how many you may think they have
established here, facts and circumstances to show that these
five defendants had a meeting of the minds, even though they
A. 73
may never have gotten together and actually formed the
conspiracy as such; but if you believe that throughout this
period of time as named in the indictment they arrived at a
common understanding for this film to be sent from the
corporate defendants and the personal defendants in Michigan
to this district in Kentucky, to Cinema X Theatre, or to Mr.
Marks, and that he was to show it and that they were to
thereby to receive remuneration for it, whatever it may be,
much or little, and if you believe that there are sufficient
facts and circumstances to show that they had a meeting of
the minds and that some one act or more acts, but at least
one, was done by any member of the conspiracy to carry out
its objects and purposes and was done during the life of the
conspiracy, then that completes the charge.
Now, I don’t want to compound or rather obscure what
might be a rather obscure situation and I will give you an
illustration. Let us assume that three people would agree
among (T. 866) themselves to rob a bank. That doesn’t mean
that they all had to sit down, as I say, and draw up a formal
instrument that they were going to do it, but they had a
common understanding and that one was to get an
automobile and one was to make a plan of get away, and so
forth. If nothing was ever done, if they just had that meeting
of the minds and that was the end of it, no act was ever done
to carry out the object and purpose of the conspiracy, then
no one is guilty of anything. But if one was supposed to go
and get an automobile and he went and got an automobile,
even though the bank was never robbed, the conspiracy has
been formed and there was an unlawful act committed by all
three of those defendants.
What the United States says here is that these defendants
had this agreement and they carried it out by sending this
film into this district and that each of them had some
A. 74
attention to Overt Act No. 7. I did this before, but | will do
it again so you won't (T. 867) overlook it, which is not to be
considered by the jury. Leave out that overt act. It has not
been established and it is not to be considered. I mean there
is no evidence. I am not saying that any of them have been
established, but I am saying that there has been no evidence
and the Court ruled as a matter of law that an Overt Act No.
7, which states:
“That on or about some date to the Grand Jury
unknown, but between the dates of January 15, and
February 27, 1973,
STANLEY MARKS DBA CINEMA X THEATRE
HARRY MOHNEY
GUY WEIR
AMERICAN AMUSEMENT COMPANY, INC.
AMERICAN NEWS COMPANY, INC. AKA
AMERICAN NEWS DISTRIBUTING COMPANY
knowingly transported and caused to be transported
in interstate commerce from the states of Michigan,
Indiana and other states to the Grand Jury unknown,
to Newport, Campbell County, in the Eastern District
of Kentucky, copies of an obscene, lewd, lascivious
and filthy film preview entitled, “Memoirs Of A
Madam” for the purpose of the sale and distribution
of said film.”
(T. 868) Now, that wasr never established, there was no
evidence on that point, so you are not to consider that overt
act. You may consider all of the other overt acts set out in
the indictment under this conspiracy Count 9.
Four essential elements are required to be proved in order
to establish the offense of conspiracy charged in the
indictment:
A. 75
First: That the conspiracy described in the indictment
was willfully formed, and was existing at or about the
time alleged;
Second: That the accused willfully became a member
of the conspiracy;
Third: That one of the conspirators thereafter
knowingly committed at least one of the overt acts
charged in the indictment, at or about the time and
place alleged; and
Fourth: That such overt act was knowingly done in
furtherance of some object or purpose of the
conspiracy, as charged.
If the jury should find beyond a reasonable doubt from
the evidence in the case that existeng of the conspiracy
charged in the indictment has been proved, and that during
the (T. 869) existence of the conspiracy one of the overt acts
alleged was knowingly done by one of the conspirators in
furtherance of some object or purpose of the conspiracy, then
proof of the conspiracy offense charged is complete; and it is
complete as to every person found by the jury to have been
willfully a member of the conspiracy at the time the overt act
was committed, regardless of which of the conspirators did
the overt act.
As stated before, the burden is always upon the
prosecution to prove beyond a reasonable doubt every
essential element of the crime charged; the law never imposes
upon a defendant in a criminal case the burden or duty of
calling any witnesses or producing any evidence.
Now, one other thing I do want to point out to you here.
I made the statement to you during the progress of the trial,
but I will state it to you again. Any statement made by a
member of a conspiracy, even though in the absence of his
co-defendant, or co-conspirators, may be considered as
A. 76
evidence against all of them if it is made during the life of the
conspiracy and in furtherance of its object and purposes.
Otherwise, until you believe the conspiracy has been formed,
(T. 870) you must put that test to it: Was there a conspiracy?
if you decide that there was then you have a right to consider
the statement that was made by any one of -the alleged
conspirators, even though his co-conspirators may not have
been present at the time.
Possibly, by way of review — this is a little repetitious,
but I don’t want to overlook the proper instruction, so I will
give it to you again.
A conspiracy is a combination of two or more persons,
by concerted action, to accomplish some unlawful purpose, or
to accomplish some lawful purpose by unlawful means. So, a
conspiracy is a kind of “partnership in criminal purposes’’, in
which each member becomes the agent of every other
member. The gist of the offense, is a combination or
agreement to disobey, or to disregard, the law.
Mere similarity of conduct among various persons, and
the fact they may have associated with each other, and may
have assembled together and discussed common aims and
interests, does not necessarily establish proof of the existence
of a conspiracy.
(T. 871) However, the evidence in the case need not show
that the members entered into any express or formal
agreement, or that they directly, by words spoken or in
writing, slated between themselves what their object or
purpose was to be, or the details thereof, or the means by
which the object or purpose was to be accomplished. What
the evidence in the case must show beyond a reasonable
doubt, in order to establish proof that a conspiracy existed, is
that the members in some way or manner, or through some
contrivance, positively or tacitly came to a mutual
understanding to try to accomplish a common and unlawful
plan.
A. 77
The evidence in the case need not establish that all the
means or meth set forth in the indictment were agreed
upon to carry out the alleged conspiracy; nor that all means
or methods, which were agreed upon, were actually used or
put into operation; nor that all ot the persons charged to have
been members of the alleged conspiracy were such. What the
evidence in the case must establish beyond a reasonable doubt
is that the alleged conspiracy was knowingly formed, and that
one or more of the means or methods described in the
indictment were agreed upon to be (T. 872) used, in an effort
to effect or accomplish some object or purpose of the
conspiracy, as charged in the indictment; and that two or
more persons, including one or more of the accused, were
knowingly members of the conspiracy, as charged in the
indictment.
In your consideration of the evidence in the case as to
the offense of conspiracy charged, you should first determine
whether or not the conspiracy existed, as alleged in the
indictment. If you conclude that the conspiracy did exist, you
should next determine whether or not the accused willfully
become a member of the conspiracy.
In other words, if you should determine that the
conspiracy existed, as I stated a few minutes ago, you should
then determine whether or not each one, each member, taking
up each alleged defendant, each alleged member, each of the
defendants, you are to determine whether thet particular
defendant was.actually a part of it.
If it appears beyond a reasonable doubt from the
evidence in the case that the conspiracy alleged in the
indictment was willfully (T. 873) formed and that the (a)
defendant willfully became a member of the conspiracy either
at its inception or afterwards, and that thereafter one or more
of the conspirators knowingly committed one or more of the
overt acts charged in furtherance of some object or purpose
of the conspiracy, then there may be a conviction even
A. 78
though the conspirators may not have succeeded in
accomplishing their common object or purpose and in fact
may have failed to do so.
The extent of any defendant’s participation, moreover, is
not determinative of his guilt or innocence. A defendant may
be convicted as a conspirator even though he may have played
only a minor part in the conspiracy.
An “overt act” is any act knowingly committed by one
of the conspirators, in an effort to effect or accomplish some
object or purpose of the conspiracy. The overt act need not
be criminal in nature, if considered separately and apart from
the conspiracy. It may be as innocent as the act of a man
walking across the street, or driving an automobile, or using a
telephone. It must, however, be an act which follows and
tends toward accomplishment of the plan or scheme, and (T.
874) must be knowingly done in furtherance of some object
or purpose of the conspiracy charged in the indictment.
If from all the evidence and the reasonable inferences
therefrom, you believe beyond a reasonable doubt that two or
more of the individuals or corporations charged in Count 9 of
the indictment in this case, did in fact conspire to violate a
law of the United States, then I charge you that all those so
found may be convicted of any substantive offense in Counts
1 thru 8 of this indictment, committed by any one of them,
pursuant to the conspiracy set out in Count 9, if you believe
beyond a reasonable doubt, from all the evidence, that any
one of them did any of the substantive crimes charged in
Counts | thru 8 pursuant to the conspiracy.
Now, members of the jury, we have had in this case
numerous witnesses, sone of whom have been offered to you
as expert witnesses and you are instructed that witnesses are
to be weighed and not counted. Weight does not depend upon
having the greater number of witnesses. You may believe one
witness against many. The jury determines the weight to be
given (T. 875) the testimony of the witnesses by their
A. 79
demeanor on the stand, their interest in the case, the facts
bearing on their credibility, their intelligence and knowledge,
their prejudice and interest, if any, and not by their number.
The rules of evidence ordinarily do not permit witnesses
to testify as to opinions or conclusions. An exception to this
rule exists as to those whom we call “expert witnesses”’.
Witnesses who, by education and experience, have become
expert in some area, science, profession, or calling, may state
an opinion as to relevant and material matter, in which they
profess to be expert, and may also state their reasons for the
opinion.
You should consider each expert opinion received in
evidence in this case and give it such weight as you may think
it deserves. If you should decide that the opinion of an expert
witness is not based upon sufficient education and experience,
or if you should conclude that the reasons given in support of
the opinion are not sound, or that the opinion is outweighed
by other evidence, you may disregard the opinion entirely.
Now, some of the defendants in this (T. 876) case, two
of the defendants, are corporations. A corporation is a legal
entity, or person, and a corporation may be found guilty of a
criminal offense. A corporation is a creature of statute; it is
not an individual, but it is only operated and controlled by
humans, by individuals. A corporation itself is a separate
entity. So, consequently, a corporation may violate the law,
as an individual, but it must do it through its authorized
agents and officers and directors.
A corporation of course may only act through natural
persons, who are known as its agents. In general, any agent or
representative of a corporation possessing adequate authority
may bind the corporation by his acts, declarations and
omissions. In order to find a corporation defendant guilty,
you must find that all of the essential elements of the
offense, as set out in these instructions, are present as to the
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corporation within their authority. The scope of authority of
these agents is a question of fact for you to decide just as
other fact questions in the case.
Just as in the case of an individual defendant, the burden
in on the Government to establish the guilt of a corporate
defendant beyond (T. 877) reasonable doubt.
As a general rule, whatever any person is legally capable
of doing himself can be done through another as agent. So, if
the acts of an employee or other agent are voluntarily and
intentionally ordered or directed, or authorized or consented
to by the accused, then the law holds the accused responsible
for such acts, the same as if the acts had in fact been done by
the accused.
A stockholder or director of a corporation may not be
held criminally liable for specific acts of his corporation,
performed through its employees, unless he actually and
personally performed the act which constitutes the offense or
the act was done at his direction or with his permission.
Consequently, the Defendant, Harry Mohney, as a stockholder
or director of the Defendant corporation, may not be found
guilty of the offenses alleged unless the Government has
proved beyond a reasonable doubt that the publication
charged as being obscene, was transported or caused to be
transported in Interstate Commerce at the direction of the
stockholder or director.
(T. 878) In other words, a person can’t be held
accountable for something that the corporation does if it is
unknown to him, although he is responsible for the conduct
of the business of the corporation. He naturally does not do
all of these things himself. Corporations act through agents
and if he knew it was being done, if it was done with his
approval and assent and acquiescence, it is considered to be
by his direction since he was in charge of what the
corporation did or had a part in its acts and he may be, if
you believe that he acquiesced, with his knowledge and
A. 81
consent and acquiescence and approval, and you believe that
fact, as I say, to the exclusion of a reasonable doubt, then he
may be found guilty for the corporation.
You have been instructed on the basis of how a
corporation can be held criminally liable on a charge of
obscenity as set forth in the indictment; that is, only through
its officers and agents under conditions which I have stated.
This does not mean that the officers and agents may be
cleared of wrongdoing in the event the corporation is found
guilty. The officers and agents, such as Mr. Weir and Mr.
Mohney, may alsc _ > held (T. 879) accountable and thereby
personally guilty of wrongdoing and if you believe from all
the evidence or reasonabie inferences that may be drawn from
the evidence, to the exclusion of a reasonable doubt, that
these defendants, Weir and Mohney, or either of them,
knowingly and intentionally, either acting personally or
causing another or others to act to effect the transportation
of obscene films in interstate commerce from outside the
State of Kentucky to this Eastern District of Kentucky for
the purpose of sale or distribution, they may be found to be
individually and personally guilty as charged in this
indictment, treating them not collectively and not together,
but each one of them and applying the rules of law as I have
given them to you, to each of them.
You will note that the indictment charges the defendants
with knowingly transporting or causing to be transported in
interstate commerce certain obscene films for sale of
distribution and that these were transported from Michigan,
Ohio, and other states. You are instructed that the statute
involved, 18, U.S.C. 1465, prohibits transporting such obscene
films in (T. 880) interstate commerce for sale or distribution.
Thus, it is not necessary that the United States prove that the
films were shipped from both Michigan and Ohio and some
other state into Kentucky, so long as it is proven that the
films were shipped from another state into Kentucky and that
the defendants or any of them caused them to be transported
into Kentucky from one of those other states.
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In other words, even though you may believe that they
were sent by the defendants or some of them, even though
they came in a round about way, it doesn’t mean that they
came necessarily direct but were sent from out of this district,
out of state into this district, into Kentucky. I don’t think
you will have any difficulty about sale or distribution. That
doesn’t mean that they have to be pedaled out. The sale of
the film is accomplished if it is shown and money is taken
from patrons to see it. That is a sale and distribution of the
film. It doesn’t mean that they have to go around and
distribute it among people, but the sale and distribution is
achieved if they put it into commerce by showing it at the
theater, if you believe that they did that for (T. 881) money,
or not necessarily for money, but that is the charge in the
statute, for sale or distribution.
The term “interstate commerce” includes commerce
between one state and another state. I think you understand
that.
If you find that the motion picture film “Deep Throat”
was transported between some other state and Kentucky on
the occasions alleged in the Indictment, then I charge you
that the interstate commerce element of those Counts has
been satisfied.
By transportation of the film for the purpose of sale or
distribution is meant transportation for commercial gain or
exhibition to others as opposed to a pur ly private viewing by
the transporter.
If you believe from all the evidence that the movie,
“Deep Throat’ or any other of the films in the indictment
were made in a state outside of Kentucky and were then
found in possession of a theater or person in this state, you
may draw the inference if you so believe that any such film
has been transported in interstate commerce.
A. 83
The essential elements required (T. 882) to be proved
beyond a reasonable doubt in order to establish the offenses
charged in the indictment are as follows:
1. That on or about the dates set forth in the indictment
in Counts 1 thru 8, the defendants transported or caused to
be transported in interstate commerce from some state
outside of Kentucky into Kentucky an obscene film for the
purpose of sale and distribution.
2. The defendants had knowledge of the nature or
character of the contents of the film at the time it was
transported in interstate commerce and knowledge of the
interstate character of the shipment.
3. The defendants knowingly transported or caused to be
transported in interstate commerce an obscene film for the
purpose of sale and distribution.
4. The average person, applying contemporary community
standards, would find that the film, taken as a whole, appeals
to one’s prurient interest in sex.
5. That the film depicts or describes, in a patently
offensive way, sexual conduct, including but not limited to
ultimate (T. 883) sexual acts, normal or perverted, actual or
simulated, masturbation, excretory functions, and lewd
exhibition of the genitals.
6. That the film, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
These last three elements constitute the judicially
determined definition of obscenity.
Counts | thru 9 of the indictment includes the words of
the statute, namely the adjectives “obscene”, “lewd”, and
“lascivious”, but the gist of the offenses alleged in those
counts are that the Defendants knowingly and willfully caused
A. 84
to be transported an obscene film in interstate commerce for
purpose of sale or distribution.
The best of whether the film is obscene is as follows:
Whether to the average person, applying contemporary
community standards, the film taken as a whole appeals to
the prurient interest.
Under this definition, three elements must exist: (1)
whether the average person, applying contemporary
community (T. 884) standards would find that the film, taken
as a whole, appeals to the prurient interest in sex; (2) whether
the film depicts or describes, in a patently offensive way,
sexual conduct, including but not limited to ultimate sexual
acts, normal or perverted, actual or simulated, masturbation,
excretory functions, and the lewd exhibition of the genitals,
and (3) whether the film, taken as a whole, lacks serious
literary, artistic, political or scientific value.
The first test to be applied in determining whether the
film charged herein is obscene is whether the average person,
applying contemporary community standards would find that
the film, taken as a whole, appeals to one’s prurient interest
in sex.
A “prurient interest” is an inordinate, shameful, morbid,
degrading, unhealthy and unwholesome interest in sex and in
details concerning sex. A film which appeals or panders to an
interest in sex that can be described by those adjectives
appeals to prurient interest. This does not mean that a film
can be said to appeal to prurient interest merely because it
describes an activity of which you disapprove. It is not the
(T. 885) matter that the film describes, but the manner in
which it describes it, that determines whether it is to be
condemned. If the film is calculated, by the physical actions
that it describes and depicts and the detail and manner and
such description and depiction, to appeal to and excite in the
viewer shameful, morbid, degrading unhealthy or
unwholesome interests, thoughts or desires, you can find that
A. 85
it appeals to prurient interest. This judgnient must of course
be made in light of contemporary community standards as
applied by the average person with an average and normal
attitude toward an interest in sex. If you conclude that the
detail and manner of description goes beyond that which the
average person would consider a normal interest in sex and
appeals instead to an inordinate, shameful, morbid, degrading,
unhealthy and unwholesome interest, and that to the average
person the degree of this appeal offends community
standards, and if you arrive at this conclusion beyond a
reasonable doubt, you should find that the film appeals to
prurient interest and is obscene.
The “average person” is, of course, a hypothetical person.
The phrase means (T. 886) a person with an average interest
and attitude toward sex: not a libertine, not a prude, not a
person who is preoccupied with sex, not a person who rarely
if ever thinks about sex, not a person ‘ho thinks sex is the
most important thing to be discussed. she phrase means a
normal individual of average sex instincts; not one who is
oversexed, not one who is under-sexed, not one who thinks
sex is the most important factor in life, and not one who is
afraid of sex or repelled by sex or ignorant of sex or bored
by sex. The phrase means, in short, a normal, healthy, average
adult man or woman with normal, healthy, average attitudes,
instincts and interests toward sex.
The Court has charged you that one ingredient of
“obscenity” is the appeal of the press materials to prurient
interest. “Prurient” is a word that may mean different things
to different people. Under the law herein, a prurient interest
is only a shameful or morbid interest in sex, nudity or
excretion. Press materials do not appeal to a prurient interest
if the average viewer today can view the publication candidly,
openly and with the normal interest in (T. 887) sex which all
persons presumably have in greater or lesser degree.
The explicit depiction of sex or sexual activity is not
synonymous with obscenity. You may find such explicit
A. 86
depictions ugly or repulsive and it would still be your duty to
find them not obscene if they do not meet the legal test of
obscenity that I have given to you.
The second test to be applied in determining whether the
film is obscene, is whether it depicts or describes, in a
patently offensive way, sexual conduct, including but not
limited to ultimate sexual acts, normal or perverted, actual or
simulated, masturbation, excretory functions and lewd
exhibition of the genitals.
In applying this test, you must consider the film as a
whole and not part by part. You must measure the film by
contemporary or current local community standards and
determine whether the film so exceeds the limits of candor in
the description or representation of sex, so as to be patently
offensive. In other words, if you find the film patently
offensive because it affronts contemporary community
standards relating to the (T. 888) description or
representation of sex, then, if you find the other elements of
these crimes to exist, you may find Defendants guilty.
“Contemporary community standards” means _ the
standards generally held throughout the Eastern District of
Kentucky. We are not measuring this term “contemporary
community standards” directly with what happened in
Newport or on Monmouth Street, but it includes the whole
Eastern District of Kentucky. You people on the jury are
from different parts. Some of you are from Newport,
Campbell County, maybe Monmouth Street, I don’t know;
others of you from out in Boone County, some in Bracken,
some in Mason. This District extends to sixty-seven counties
in Kentucky, goes throughout the whole eastern district of
Kentucky, as I explained that to you when you qualified as
jurors. So you are not to say, “Well, a thing like that
wouldn’t offend a person or even be obscene maybe under
some conditions, but on the other hand, there are things we
know to some people more prudish that even something of
less significance then might be drawn from these films would
A. 87
be considered obscene. So I think you pretty generally under-
(T. 889) stand, but I don’t want you to say, “Well, that
doesn’t offend anybody where they had this theater,” or,
“They wouldn’t have to do to see it.” That is not the point.
The point is whether or not it is of such a nature that you
believe in light of these instructions which I have given you,
in light of the evidence, that this film is obscene because it
offends contemporary community standards, contemporary
community standards being the neighborhood of the Eastern
District of Kentucky concerning sex, judged by the average
person in this community as I have defined it to you. The
phrase means, as it has been aptly stated, “the average
conscience of the time” and “the present critical point in the
compromise between candor and shame at which the
community may have arrived here and now.” You, the jury,
are the sole judges of the contemporary community standards
of the Eastern District of Kentucky. Although you may
consider expert testimony on the subject of community
standards, if offered by either side, expert testimony is not
necessary. You may give such expert testimony whatever
weight you think it deserves or disregard it entirely. The
determination rests with you — not (T. 890) with any expert. In
arriving at and applying your judgment, however, you are not
to consider your own standards of what is good and bad. You
are not to condemn by your own standards, if you know and
believe them to be stricter than those generally held, and you
are not to exculpate or excuse by your own standards, if you
know and believe them to be more tolerant than those that
are generally held.
That business of an “‘average person” is necessarily vague
and I am not sure if there is such a person who might be
considered average in the Eastern District of Kentucky, or any
other community in our country or in the world. That must
necessarily be a very vague term, but it is the best that the
law can provide and it does have a significance of meaning
which all of us generally, I think, understand, not an
A. 88
extremist in either sense, in any way, but a person who might
be representative of this district.
If you find that the films in this Indictment exceed
substantially the limits of candor in the description or
representation of sex which is acceptable in the Eastern
District of (T. 891) Kentucky, then you may find the film to
be patently offensive.
In determining contemporary standards, you should take
into account such things as dress styles, which include hot
pants and see-through blouses; topless and bottomless bars;
adult theaters which exhibit films dealing candidly with sex
matters; adult book stores which sell publications containing
pictorial and verbal portrayals dealing with sex; adult motion
picture theaters which display films containing explicit, sexual
conduct.
(T. 892) Your own personal and social views on the press
materials charged as obscene in the indictment may not be
considered. Thus, whether you believe that the press materials
are good or bad is of no concern; so too, you may not
consider whether in your opinion the press materials are
moral or immoral; whether they are likely to be helpful or
injurious to the public morals. Similarly, whether you like or
dislike the press materials, whether they offend or shock you,
may not be considered by you. You may think the press
materials are immoral, shocking or offensive, and you must
acquit the defendants if the press materials are not obscene,
as the Court has defined that term for you.
The third test to be applied is whether the film lacks
serious literary, artistic, political, or scientific value. Now, if
you believe that this film lacks serious literary, artistic,
political or scientific value, or whether it does have those
adjectives, serious literary, artistic, political or scientific value
it is not obscene, but if it lacks those, that is the exception
that is taken out of this. You can determine if those
A. 89
adjectives as I have read them to you are (T. 893) to these
films; then it is not obscene within the meaning of the law.
Obscenity is excluded from constitutional protection
because it is without serious social importance. Obscene
utterances are no essential part of an exposition of ideas and
are of such slight value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the
social interest in order and morality. Of course, the mere fact
that a film deals with sex does not mean that it cannot have
value to society. Indeed, such a film can have social
importance if it portrays sex in a manner that advocates ideas
or that has literary, scientific, political or artistic value. 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, you can brand it
obscene. If you find that it does have those, one or more of
those adjectives that I have given you, then you should
determine that it is not obscene.
“The film when taken as a whole” means that you are to
view each film in its entirety. You are to judge the film as a
whole (T. 894) on the basis of its total effect and not on the
basis of isolated passages or sequences. Thus, the film is not
to be condemned merely because it contains passages or
sequences that are descriptive of sexual activity, nor is it to
be exculpated or excused despite containing such descriptive
passages or sequences merely because it has a plot, tells a
story, purports to point out a moral or deliver a message, or
contains passages or sequences that are descriptive of other
than sexual activity. You are to weigh the total effect of the
film and determine what is its main thrust. You must decide
whether the sexually descriptive content of the film
outweighs, or is subordinate to, all other content. You must
determine whether the descriptions or depictions of sexual
activity merely illuminate and support the story told or the
message delivered by the film or whether the message; story
and other incidents of the film are merely accessory to and
A. 90
provide a format or setting for the descriptions or depictions
or sexual activity.
You are instructed as a matter of law that it 1s not
necessary for the Government to prove that the films in the
indictment were (T. 895) exhibited to juveniles or unwilling
adults before you can find it obscene.
All that is necessary for you to find the film —-
t the ave person applying contemporary communi
wer of @:tenen District of Kentucky would find that
the film, taken as a whole, appeals to the prurient interest in
sex; that the film depicts or describes in a patently offensive
way sexual conduct; and that the film, taken as a whole, lacks
serious literary, artistic, political or scientific value.
The First Amendment to the Constitution of the United
States guarantees freedom of speech and press. It is a basic
guarantee of the First Amendment that one is free to
advocate ideas. With respect to the nature of ideas, they may
be of the widest variety, including the unorthodox, the
controversial, or even ideas hateful to the prevailing climate of
opinion, but unless they are integrated with unlawful conduct,
such ideas have the full protection of the guarantees of the
First Amendment.
The guaranty of the Constitution is not confined to the
expression of ideas that are conventional or shared by a
majority.
(T. 896) Liberty of circulation is as essential to freedom
of the press as liberty of publication; indeed, without the
circulation, the publication would be of little value. This
circulation of press materials would be protected by the First
Amendment to the same extent as the printing and
publication thereof.
You are instructed that it is entirely irrelevant that a
Defendant may have intended to make a profit from the
A. 91
transportation of the press materials involved in this case.
That fact is immaterial as is the fact that daily metropolitan
newspapers, films and books are sold or exhibited for a profit
in our free enterprise system.
No media of communication including publications such
as are involved in this case, may be deemed obscene merely
because they are distributed or sold commercially.
The Government must prove beyond a reasonable doubt
that the Defendants acted with knowledge before there may
be a conviction. This is to insure that no defendant will be
convicted because of innocent mistake, accident or
inadvertence, the requirement of (T. 897) knowledge applies
both to the placing of the film in interstate commerce and to
the contents of the film.
It is not necessary for the Government to prove that the
Defendants, had actual knowledge concerning, or actually
directed the specific shipment named in the indictment. It is
sufficient to show that the Defendants knew their business
was carried on between states and that they participated in
the operation of the business.
In considering whether or not the Defendants, had
knowledge of the contents of the packages, you may consider
all pertinent evidence in the case. You may consider all of the
circumstances in the case, and all inferences reasonably drawn
from the evidence to determine whether or not the
Defendants, acted with knowledge.
You must be satisfied beyond a reasonable doubt that the
Defendants, were in some manner aware of the character or
nature of the film alleged to be transported in interstate
commerce. The belief of the Defendants, as to the obscenity
of the film is irrelevant. If you find — you are the ones that
are going to determine (T. 898) its obscenity, so they cannot
say, “I shipped it but I didn’t know it was obscene.” That is
A. 92
i it
not a defense. If they knew they were shipping it or knew
was being shipped, if it is determined that it is obscene that
identifies the guilt of the accused in violating this statute. If
you find that the Defendants knew what they were doing,
their personal belief that they were not violating the law is no
defense.
The Indictment charges a serious crime which requires
proof of specific intent before a defendant can be convicted.
“Specific intent”, as the term implies, means more than the
general intent to commit the act. To establish specific intent,
the Government must prove, beyond a reasonable doubt, that
a defendant knowingly did an act which the law forbids.
Intent ordinarily may not be proved directly, because
there is no way of fathoming or scrutinizing the operations of
the human mind. But you may infer a defendant's intent
from the surrounding circumstances. You may consider any
statement made, or acts done or omitted by a defendant, and
all other facts and circumstances in evidence which indicates
his state (T. 899) of mind. It is ordinarily reasonabie to infer
that a person intends the natural and probable consequences
of acts knowingly done or knowingly omi'ted.
It is your duty to give separate ae to _
charges against each corporate defendant and against ¢a
individual defendant. You may find all of the defendants
guilty, or all of the defendants not guilty, or some guilty and
some not guilty, all as the facts found by you warrant.
The verdict must represent the considered judgment of
each juror. It is your duty, as jurors, to consult wity one
another and to deliberate with a view to reaching an
agreement, if you can do so without violence to individual
judgment. Each juror must decide the case for himself or
herself. A juror is not required to surrender honest
convictions as to the weight, effect, or lack of evidence solely
because of the opinion of a fellow juror, or for the mere
purpose of returning a verdict.
A. 93
A jury which is conscientiously unable to agree on a
verdict is just as much a safeguard for liberty and justice as
one which has (T. 900) reached a verdict. A juror is never
requred to sacrifice his or her conscientious scruples for the
sake of reaching agreement.
You will note the indictment charges that the offense was
committed “on or about” a certain date. The proof need not
establish with certainty the exact date of the alleged offense.
It is sufficient if the evidence in the case establishes beyond a
reasonable doubt that the offense was committed on a date
reasonably near the date alleged.
Now, members of the jury, I feel in a sense I should
apologize to you for giving you these extended instructions,
but as I stated at the outset there are cases, of which this is
one, in which it is necessary to state definite rules of law to
guide the jury in arriving at its verdict. It is not what might
be termed a simple case, although the thing you are to decide
is easy of recognition and in the light of all the evidence you
are personally competent and qualified to reach a verdict one
way or the other. It is the theory of the Defendants in this
case that they were merely acting, showed the film and these
films which you have seen here — now, that is the test, (T.
901) after all, in light of all these instructions — you saw
these films and you are to decide in this case what those films
are in light of those instructions, whether or not you believe
they are obscene. It is the theory of the defense that they are
not obscene, and that under the statutes these films are not
filthy films, are not lewd or lascivious or obscene, that they
have value as I have outlined that to you, that they have
literary, artistic, political or scientific value and that they are
not of such a nature that they can do anybody any harm or
that they can harm the community and that they are without
the contemplation of the Congress in enacting this statute.
That is the position of the Defendants, that they are innocent
of wrong-doing.
A. 94
In the first place, they say that the interstate nature has
not been proven, the evidence that has been offered in that
regard was inconsequential and that the United States has not
established that it was an interstate transaction. If you believe
that it was not an interstate transaction, that ends the case.
You have to find that it was interstate. The Defendants say
they haven’t proved that to the exclusion of a reasonable (T.
902) doubt. The Defendants say, as I say, that these films are
not obscene and they do not offend the average person with
contemporary community taste, or that they are not offensive
to such a person; and that therefore they have done no harm,
that they have had no part in doing wrong and that they
should be found not guilty.
The United States, on the other hand, says that by the
very showing of these films, they show a lack of literary,
artistic, political or scientific value of any kind, that they are
pure filth and that they are the kind of thing that this statute
was passed to keep from being shown in the community. The
law makes a distinction by saying that apparently from
decisions of the court things that might be shown in one
community could not be shown in another community. In
other words, a visit to a contemporary community, as | say
the Eastern District of Kentucky, and more or less leaves it
up to the juries, those charged with making such a decision,
as to whether or not it violates social ideas of that
community taken in the terms that I have outlined it to you,
the average person. So you are to decide very simply, you saw
the films, you know (T. 903) what they are, not judging them
particularly by your own standards, but are they of such a
nature that you believe that they offend, as charged in the
statute, are obscene to the average person in this Eastern
District of Kentucky. If you believe that they do and you
believe that the interstate transaction has been established, the
United States contends that the evidence clearly establishes
that fact to the exclusion of a reasonable doubt and that the
Defendants are guilty and that you are to find them guilty. If
you do not so believe, you should find them not guilty.
A. 95
As I say, you may find one of them guilty, the others not
guilty, some of them guilty on one count, some of them not
guilty, all of them guilty or all of them not guilty. The
conspiracy count stands alone. I have given you the definition
of that. I think you understand that, a common
understanding — I won’t go through that again — a meeting of
the minds to do these acts and to produce this film in this
District from outside the state for the purpose of publication
and sale.
Now, members of the jury, I don’t believe in
complimenting people for doing (T. 904) their duty and so |
never go on that theme. I don’t like to do a lot of talking
from the bench. I am more or less a disciple of Francis
Bacon, who said that “An over-speaking judge is no
well-tuned cymbal.” I have done a lot of talking this
afternoon and I feel like I should apologize. You have been
very patient and have been throughout this extended trial and
it has been extended. It started last Tuesday, I believe, at
19:00 o’clock and has been going ever since with half a day
out. As I say, | don’t mean to flatter you but I have noticed
the close attention which you have given to this whole case
and you are to be commended for it.
1 am confident that you can, taking this evidence to your
room, these exhibits — you don’t have to do a minute
examination, a thorough audit of all these exhibits — you
should look at them and see what they are and identify them
in the light of the whole evidence. That doesn’t mean that
you have to act as a certified public accountant undertaking
to make a complex layout. They are there for your
examination and you can study them as much as you please
for that matter. I don’t mean that you shouldn’t, you (T.
905) should. Take these exhibits tomorrow in light of the
whole evidence, go to your room and see if you can make a
verdict in this case.
I'm going to excuse you until 9:00 o'clock tomorrow
morning. I will submit the case to you as shortly as I can
A. 96
thereafter. | want you to go to your jury room. Come to the
side door.
Mr. Marshal, keep the courtroom locked and they can go
to their jury room until they are called down.
I want to emphasize that you observe all admonitions
strictly and I am confident that you will do that. That is
especially true about talking to members of your family,
which is natural, and most anyone does and you have to
guard yourself more in that respect than any other single
aspect of the admonition. Don’t read anything or listen to
any newscast. Just dismiss it from your minds and get a good
night’s rest and start tomorrow trying to remember. You will
get some help from your fellow jurors, so don’t get to
wondering this. Just wait until tomorrow when you come
back and take it up.
One other thing, and that is I (T. 906) want you to stay
in a good humor. You know, you get to a certain stage in any
long, drawn-out affair, whatever it may be, where your nerves
get a little frayed and it is a real test of character, one that
doesn’t let that overcome them. You know, good-humor is
one of the marks of intelligence. It is not the only mark.
There are a lot of ill-tempered people who are very intelligent,
but it is a mark of intelligence and I am sure that you will
observe that. You will all be good friends after this is over.
You may form an association and have a reunion. I have seen
jurors do that. But bear these things in mind and go and
come back tomorrow morning.
You may adjourn court until 9:00 o’clock, after the jury
has retired. (Reporter’s note: The jurors retired from the
courtroom.)
‘
A.o7
“The Judgments and Opinions of the United States
Court of Appeals for the Sixth Circuit are not
included herein since they are set forth in the
Appendix to the Petition for Writ of Certiorari.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.