# Petition — Walter v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 447 U.S. 649

## Text

Supreme Court, U.S.
FILED

ne JUL 16 1979

Supreme Court of the United Spateg: roo 1x. cunt

October Term, 1979

WILLIAM WALTER,

Petitioner,
vs.

UNITED STATES OF AMERICA,
Respondent.

Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.

W. MICHAEL MAYOCK,

Penthouse Suite,

10100 Santa Monica Boulevard,
Los Angeles, Calif. 90067,
(213) 552-1462,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

)
SUBJECT INDEX
Page
) I TIN asker ents cre ssnrdenqntniocsneosedinsonennent 1
I ind Lasenidntcinebinacennniinandincsvepicfiensnghscooseneg 2
I I oo ooo cacsnsncnse nnnseicecsaneescconcesies 2
Constitutional and Statutory Provisions Involved .... 6 |
re Fl canatsenpadusnsnviswannnuben desing 6
Reasons for Granting the Writ ...................--------+-+++ 17
}
NPR Santa OR Riven ee Letter ate eerie rarer 40 4
Appendix A. Opinion of the Court of Appeals ......
pial aA dist bectentstnavulpbectenihnseinsvectaeioiesies App. p. 1
Wisdom, Circuit Judge, dissenting .....................--- 18
|
Appendix B. Opinion and Order of the Court of
MII Si ecidiigtdicahindnabipesnCanrecesndaunnvvencvavengbonincenansene 37
Appendix C. Order Granting Stay of Issuance of.
rs Sk oacknliannenpbispirsgchansab eee 40
{
Appendix D. Constitutional and Statutory Provi-
RO I icc cde slimathc tsb anjaindoccansgeennsinuhtprocaioenpaee 41
Appendix E. Letter From Glenn Zell Admitted at
i Trial as Government Exhibit 13 .......................... 45

ii.

TABLE OF AUTHORITIES CITED

Cases Page

A Quantity of Books v. Kansas, 378 U.S. 205
ho DLE OD LE RD LES |S ERY RO OO Poe 28, 29
Blount v. Rizzi, 400 U.S. 410 (1971) 0.002. . 29
Burdeau v. McDowell, 256 U.S. 465 ........ 1 2

Clicque v. United States, 514 F.2d 923 (Sth Cir.
a a le a °.
Elkins v. United States, 365 U.S. 206 .......00000000000.... 18
Freedman v. Maryland, 380 U.S. 51 (1965) .......... 29
Hamling v. United States, 418 U.S. 87-0000... 32

Heller v. New York, 413 U.S. 483 (1973) ..17, 18, 29

Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636
GN Ciesla ae alte tS 20, 29

Lustig v. United States, 338 U.S. 74 «0.0. 21
Marcus v. Search Warrant, 367 U.S. 717 (1961) .... 29
Mason v. Puiliam, 557 F.2d 426 (Sth Cir. 1977)

Ps SRT OE SE ANE NAM UE er ALES TE EO 25, 26

McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir.
NN i ibeaintnlgtascipacnsicsiigs batininpascaiieadibe-cosctn 22, 23

Miller v. California, 413 U.S. 15-0000... 5, 32, 36

Mishkin v. New York, 383 U.S. 501

Mullane v. Central Hanover Bank & Trust Co., 339
ME: ES iacdatcunebla ee aglibciuinick ps ica tcc rie 30

Mullaney v. Wilbur, 421 U.S. 684 _.W00022 oe. 35
Pinkus v. United States, 436 U.S. 293

Page
Rakas v. Illinois, 439 U.S. 128 ...........................- 17, 18
Roaden v. Kentucky, 413 U.S. 496 (1973) ............
seinbbetiaalisheabilal iescledt usilasadaduedshs tics 20, 24, 27, 28, 29, 32
Rochin v. California, 342 U.S. 165 (1952) ........ 30
Sandstrom v. Montana case, .... U.S. .... ............----++ 34
Shelley v. Kraemer, 344 U.S. 1 (1948) .................- 18
Smith v. California, 361 U.S. 147 (1959) ............ 32
Smith v. United States, 431 U.S. 291 -............. 5, 31, oe
Sniadach v. Family Finance Corporation, 395 U.S.
co SD OLN {5 ORIN SLE BE OO FOOLER EA RO RODS BORN AN 30
Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
ON Te IN ips ona ct onccidldienien sckaeaeyctiathacbismebnnstilicnshjson 29
Speiser v. Randall, 357 U.S. 513 (1958) ..............-. 29
Stanford v. Texas, 379 U.S. 476 (1965) ...... 17, 28, 29
United States v. Alfonso-Perez, 535 F.2d 1362 (2d
Cee: FITS cacice cia mas! WESAE) Di DONA Y SA a rell 40

United States v. Chadwick, 433 U.S. 1 ....3, 24, 25, 28

United States v. Haes, 551 F.2d 767 (8th
A og ip IRIS a, RET A ea en 20, 22, 24, 26; 27

United States v. Kelly, 529 F.2d 1365 (8th Cir.
ITED, Sobtrchepsidennrcsicomnincdanserawaneensne [; 20, oe, at, of

United States v. Levy, 578 F.2d 896 (2d Cir. 1978)

United States v. Marshall, 532 F.2d 1279 (9th Cir.
BOI | a Ab iihasainscicieh aplcd ve cbsdasibasrvennnsipickdsaaaedioiiton asatonac 39

iv.

=

Page

United States v. Mekjian, 505 F.2d 1320 (Sth Cir.
nb ) Br ADL OPUS EOP Vid Utah Pe OO RT 22
United States v. Russell, 411 U.S. 423 -.....0.0........... 30

United States v. Sherwin, 539 F.2d 1 (9th
Ce. TPFEP <.coeleee 19, 20, 22, 23, 26, 27

United States v. Tupler, 564 F.2d 1294 (9th Cir.
RD ETD nnn sciasacisniasees baie teen a, G0, &1,:tm 20
Winship, In re, 397 05.3: SOB sc. Joe 35

Rules
Federal Rules of Criminal Procedure, Rule 14 ....6, 39

Statutes
United States Code, Title 18, See. 2 ..cccccccscececsccecss- 6
United States Code, Title 18, Sec. 371 -....000000000000.. 6
United States Code, Title 18, Sec. 1462 .................. 6
United States Code, Title 18, Sec. 1465 .000000000.. 6
United States Code, Title 28, Sec. 1254(1) 0.0.0.0... 2

United States Constitution, First Amendment........

weciniocsvnaibnceyichbicinempipuienaaenmiee ane 3, 4, 5, 6, 17, 19, 23, 25
ae oe A 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 39

United States Constitution, Fifth Amendment .......
pit aateueenns 3, 4, 5, 6, 29, 30, 31, 33, 34, 36, 37, 38, 39

United States Constitution, Sixth Amendment ..5, 6, 36

_ i

Textbooks Page

1 Devitt & Blackmar, Federal Jury Practice and In-
Uy i BAA CBG T Dev cccescesccecedecsensensposes 31

Note, Private Searches and Seizures: United States v.
Kelly and United States v. Sherwin, 90 Harv. L.
Rev., pp. 463, 467-472 (1976) ........ 18, 19, 22, 23

Note, Seizures by Private Parties: Exclusion in Crim-
inal Cases, 19 Stan. L. Rev., p. 608 (1967) ........ 18

Note, The Fourth Amendment Right of Privacy:
Mapping the Future, 53 Va. L. Rev., pp. 1314,
I Poe cn cide saosctsinulncdsoapencds 18

IN THE

Supreme Court of the United States

October Term, 1979
WOO is aalcke

WILLIAM WALTER,
Petitioner,
vs.

UNITED STATES OF AMERICA,
Respondent.

Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.

Petitioner William Walter respectfully prays that a
writ of certiorari issue to _— the opinion and judg-
ment of the United States rt of Appeals for the
Fifth Circuit.

Opinions Below.

The 2-1 opinion of the Court of Appeals was filed
on April 2, 1979, and appears as Appendix A. The
decision is reported at 592 F.2d 788. A published
but still unreported per curiam opinion which denied
a petition for rehearing and petition for rehearing en
banc yet discussed an issue previously asserted and
not before commented upon by the court was entered
on June 15, 1979 and appears as Appendix B.

ccsllinns
Jurisdiction.

The judgment of the Court of Appeals was entered
on April 2, 1979, over the dissent of Circuit Judge
Wisdom. Petitioner duly filed a petition for rehearing
with suggestion for determination en banc, which peti-
tion was denied on June 15, 1979, after the court
had been polled at the request of one of its members
for an en banc hearing. A copy of the order denying
said petition appears as Appendix B. Thereafter, peti-
tioner filed a motion for stay of issuance of mandate
pending petition for writ of certiorari to the United
States Supreme Court, which motion was granted on
June 22, 1979, provided a petition for writ of certiorari
is filed in the clerk’s office of this Court on or before
July 15, 1979. A copy of the order staying issuance
of the mandate is attached as Appendix C. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).

Questions Presented.

The petitioner was charged with conspiracy and
aiding and abetting violations of the federal obscenity
laws. Twelve sealed cartons containing 871 8-mm films
of male homosexual orientation were taken by a third
party from a common carrier and then, at the FBI’s
direction, held for five days before the FBI took
delivery of them. FBI agents viewed the films two
months later and two months after that turned the
films over to the United States Attorney’s Office. Over
a year later an indictment was returned charging that
five of the 25 titles of film were obscene. No search
warrant was ever obtained, nor was there ever an
adversary hearing. Trial evidence revealed petitioner
was a business partner of a defendant shown to have
authorized the shipment of film. Petitioner, however,

ve

was not shown to have ever seen the films in question
or to have exercised any role in the business within
two months either before or after the shipment. With
the foregoing explanation, the questions presented are:

(1) Whether the FBI’s acceptance from a third
party of films wrongfully within that party’s possession
was a “seizure” subject to the warrant requirement
of the Fourth Amendment, or alternatively, whether
the rule fashioned in Burdeau v. McDowell, 256 US.
465, fifty years ago requires a two-step analysis of
the “seizure”’—that by the third party and that of
the government—where First Amendment concerns are
involved as has been held by the Eighth Circuit but
not by the Fifth or Ninth Circuits.

(2) Whether the FBI’s screening after a _ two-
month hiatus of films received from a third party
who had not viewed the films constituted both a “sec-
ondary search” subject to the warrant requirement of
the Fourth Amendment as had been held in a similar
case by the Eighth Circuit as well as a “search” within
the teaching of United States v. Chadwick, 433 US.
1.

(3) Whether the Government by appropriating pre-
sumptively protected First Amendment material re-
ceived from a third party for one and one-half years
without requesting a judicial determination of the ob-
scenity vel non of said material committed a prior
restraint the penalty for which is suppression of the
material’s use in a criminal trial in accordance with
the provisions of the First, Fourth and Fifth Amend-
ments to the Constitution and the interpretive decisions
of this Court.

(4) Whether in an obscenity prosecution derivative
proof of scienter solely through evidence of petitioner’s

os
participation in a management role in a presumptively
legal business venture which shipped numerous films,
and without any further proof that he knew of or
authorized the solitary shipment of films charged as
being obscene, deprived petitioner of freedom of speech
and press and due process of law, contrary to the
provisions of the First and Fifth Amendments to the
Constitution and the interpretive decisions of this Court.

(5) Whether in an obscenity prosecution the refusal
of the district court to instruct the jury that in calculat-
ing the mores of the community the term “average
person” means “average adult” violated the teaching
of Pinkus v. United States, 436 U.S. 293, that the
community includes all adults who comprise it since
person” subsumes the class “children” and the instruc-
tion therefore deprived petitioner of freedom of speech
and press and due process of law, contrary to the
provisions of the First and Fifth Amendments to the
Constitution.

(6) Whether in an obscenity prosecution involving
films of an exclusively homosexual orientation an in-
struction foreclosing jury assessment of the prurient
appeal, if any, of the films to homosexuals absent
proof beyond a reasonable doubt that the films were
intended to appeal to the prurient interest of homo-
sexuals deprived petitioner of freedom of speech and
press and due process of law, contrary to the provisions
of the First and Fifth Amendments to the Constitution
and the interpretive decisions of this Court.

(7)° Whether a juror who read a book and frequently
stared at the floor on the sole occasion when the
allegedly obscene films were screened for the jury was
either incompetent to render a judgment regarding the
obscenity vel non of the films which must be “taken

cpulitie

as a whole” under the directive of Miller v. California,
413 US. 15, or so prejudiced against the defense
that petitioner was deprived of freedom of speech and
press, due process of law, and an impartial jury, con-
trary to the provisions of the First, Fifth and Sixth
Amendments to the Constitution.

(8) Whether in an obscenity prosecution involving
films of an exclusively homosexual orientation the re-
fusal of the district court to voir dire the veniremen
concerning their length of residence in the community,
participation in community organizations, knowledge
of community standards from the standpoint of personal
exposure, knowledge of the mores, customs and prac-
tices of the homosexual community and opinion
whether sexually explicit matter causes harm negated
the mandate of Smith v. United States, 431 US.
291, that a defendant be given reasonable latitude
in presenting voir dire questions to the veniremen and,
accordingly, deprived petitioner of freedom of speech
and press and due process of law, contrary to the
provisions of the First and Fifth Amendments to the
Constitution.

(9) Whether due process of law under the Fifth
Amendment requ’~ed that petitioner’s case be severed
from co-defendant Sanders’ so that co-defendant Grassi,
who had entered a guilty plea during trial, could testify
to exculpate petitioner and inculpate Sanders on the
scienter issue, which Grassi had indicated he would
do but not unless there were a severance since his
former attorney was counsel for co-defendant Sanders
and could impeach Grassi with other crimes Grassi
had confidentially communicated to him if Grassi
waived his attorney-client privilege and testified in favor
of petitioner and against co-defendant Sanders.

—

(10) Whether the refusal of the district court to
give petitioner’s proffered jury instruction on his theory
of the case developed through cross-examination that
certain terms in the obscenity formulation were in-
capable of calculation deprived petitioner of freedom
of speech and press and due process of law, contrary
to the provisions of the First and Fifth Amendments

to the Constitution and the interpretive decisions of
this Court.

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First, Fourth, Fifth
and Sixth Amendments to the Constitution, Title 18,
United States Code §§ 2, 371, 1462 and 1465 and
Rule 14, Federal Rules of Criminal Procedure, appear
as Appendix D hereto.

Statement.

Petitioner appeals from a judgment of conviction
rendered after a trial by jury before the Honorable
Wm. Terrell Hodges, a judge of the United States
District Court for the Middle District of Florida, Tampa
Division, under an indictment charging both conspiracy
to violate and aiding and abetting violations of Title
18, United States Code, Sections 1462 and 1465.

The indictment was returned in the United States
District Court for the Middle District of Florida, Tampa
Division, on April 6, 1977, and contained eleven counts
charging petitioner and five others (two of whom were
corporations) with violations of federal obscenity laws.
Count One charged a conspiracy both to use a common
carrier to transport obscene matter in interstate com-

sida

merce and to transport obscene matter in interstate
commerce for the purpose of sale or distribution. Counts
Two, Four, Six, Eight and Ten charged the petitioner
and others with aiding and abetting one another in
using a common carrier to transport obscene matter
in interstate commerce. Counts Three, Five, Seven,
Nine and Eleven charged the petitioner and others with
aiding and abetting one another in transporting obscene
matter in interstate commerce for the purpose of sale
or distribution.

A. Prior to trial, petitioner filed a motion to sup-
press and return the subject films. In connection with
the hearing of that motion the following facts were
adduced: 3

On Thursday, September 25, 1975, twelve (12)
sealed boxes containing 871 8mm films of homosexual
orientation were shipped via Greyhound Package Ex-
press from St. Petersburg, Florida, to Atlanta, Georgia
(R.T. Vol. 1 Supp. at 6.)? The shipment, directed
to “Leggs, Inc.” on a “Will Call” basis, was reforwarded
to a Greyhound substation contrary to Greyhound’s
usual practice of holding “Will Call” items for pick
up—whereupon L’Eggs Products, Inc. (“LPI”) was
contacted to pick up the package. (R.T. Vol. 1 Supp.
at 20-21, 33-35.)

Michael Horton, Area Manager for LPI, drove to
Greyhound to pick up the packages on Friday, Septem-
ber 26, 1975. Horton, accustomed to receiving only
one or two boxes weighing but a few pounds, was
surprised to see twelve unusually wrapped and rein-
forced boxes weighing hundreds of pounds. Since the

“RT.” refers to the Reporter’s Transcript of the Record
on Appeal.

i wee

boxes did not look “normal” to him, Horton pried
one open and removed a box of film labeled “David’s
Boys.” The box purported to describe its film contents.
(The “David’s Boys” series of films found in the shipped
cartons consisted of 25 different titles of film of which
5 were charged in the indictment.) Horton then replaced
the box of film, advised an employee at the Greyhound
terminus that the shipment did not belong to LPI and
left. (R.T. Vol. 1 Supp. at 56, 59, 61, 76-77, 81-
82, 99.)

When Horton returned to LPI he advised his Branch
Manager William Fox about the shipment. Fox imme-
diately went to the Greyhound terminus, examined a
box of film from the already opened package and
concluded that the 12 cartons were not the property of
LPI. Fox did not pay the collect charges on the pack-
ages since LPI had no interest in them, but he took
the shipment back to LPI nonetheless. (R.T. Vol.
1 Supp. at 119, 121, 129, 131; Vol. 7 at C-146-
47, C-150, C-178.)

At LPI, Horton, Fox, Gregory Shults (LPI’s Southern
Regional Distribution Manager) and others opened all
twelve cartons and examined the boxes containing the
David’s Boys films. Shults removed an 8mm film
from its case and held it up to the light, but the
frames of the film were too small to be observed
in this fashion. Thereafter, Horton telephoned the FBI
and informed Special Agent Lawrence Mandyck of
what had happened. Mandyck instructed him to put
the boxes in a safe place “where nobody can bother
them” and that the FBI would pick them up. (R.T.
Vol. 1 Supp. at 63, 65, 90, 107, 133, 143-44, 171.)

Five days later on Wednesday, October 1, 1975,
Agent Mandyck passed by LPI to pick up the 871

_

boxes containing film. Mandyck conceded that the box
cover description of the films may have been incorrect
and that he caused no application to be made for
a search warrant during the five day hiatus although
he easily could have obtained a warrant. At LPI the
container cartons were arranged so that only the white
tops of the boxes of film could be seen without removing
the individual boxes from their container. Mandyck
or another FBI agent opened a film box and unsuccess-
fully sought to “eye view” the reel of film therein.
(The evidence reflects that each boxed reel of film
was sealed by a piece of tape to keep it from unraveling.
Accordingly, before a reel of film could be viewed,
the tape had to first be removed.) (R.T. Vol. 1 Supp.
at 93, 116, 134, 171, 192, 195, 206.)

On Friday, September 26, 1975, co-defendant
Michael Grassi called from Atlanta to ask co-defendant
Richard Larson in St. Petersburg, Florida what had
delayed the expected shipment of films from Larson.
Larson reported that the films had been shipped to
the Atlanta warehouse via Greyhound using the name
“Leggs, Inc.” as consignee—“Legs” being the nickname
of a female employee in the Atlanta warehouse. In
the past, shipments had been made and received using
the name “Leggs, Inc.” That same day Larson contacted
Greyhound express clerk Joe Harris in St. Petersburg
to report the non-receipt of the shipment and to initiate
a tracer on the package. He left a name and telephone
number. (R.T. Vol. 1 Supp. at 13-14; Vol. 4 Supp.
at 5-6; Vol. 7 at C-25, C-29-31.)

Gregory Shults of LPI attempted unsuccessfully to
find out the consignor’s address since it was fictitious.
(Several witnesses explained that a fictitious name on
shipment bills of lading was emp ved to prevent com-
mon carrier pilferage which occurre’ when the name

=< o

of a known adult business was used.) Shults also
spoke to Griffin Askew, Assistant Terminal Manager
for Greyhound in Atlanta, to advise him that LPI
was turning the shipment over to the FBI and he
gave Askew the local FBI telephone number. (R.T.
Vol. 1 Supp. at 31, 35-36, 50, 150, 167, 228-29;
Vol. 4 Supp. 5-6.)

The defendants made numerous attempts to retrieve
their misdelivered shipment. Ronald Bowman was sent
to the Greyhound station in St. Petersburg on Monday,
September 29, 1975 to look for the packages. A girl
named Joyce telephonically contacted Griffin Askew
at Greyhound on three occasions attempting to recover
the shipment. Askew, however, had been advised by
the FBI not to provide any information about the
shipment and to call them if contacted about the twelve
boxes. Askew complied with these directives. Defendant
Grassi went to the Greyhound station personally three
times looking for the package, leaving his name and
number. He also contacted LPI on Tuesday, September
30, 1975, and several times thereafter. LPI never ad-
mitted that they had the shipment. LPI’s Fox apparently
received two calls from someone trying to get the
films back and specifically recalls speaking to Grassi
but he believed their telephone conversation occurred
about two weeks after LPI acquired the films. (R.T.
Vol. 1 Supp. at 36, 50-52, 125; Vol. 4 Supp. at
6-10; Vol. 7 at C-30, C-138, C-147.)

Agent Mandyck did not review the films in the
boxes he seized until December, 1975, even though
he was aware the defendants were trying to get their
merchandise back. It was not until February, 1976,
that Mandyck through the filing of a report notified
the United States Attorney’s Office in Atlanta, Georgia,

a

that he had the films in question. An adversary hearing
to determine the obscenity vel non of the films was
never conducted. (R.T. Vol. 1 Supp. at 192, 193,
208; Vol. 7 at C-163.)

The trial judge concluded that petitioner had stand-
ing to assert the motion to suppress and return. (See
petitioner’s testimony, R.T. Vol. 1 Supp. at 223-
257.) The motion was denied, however, on the grounds
that defendants did not have a reasonable expectation
of privacy in the subject materials and “that there
was a private search and no Government seizure within
the meaning of the Fourth Amendment.” (R.T. Vol.
4 at 109-10, 115-16.)

B. Preceding the trial, petitioner filed proposed voir
dire questions with the court. (C.T. Vol. 2, Doc.
46.)° Some of the proposed questions the judge refused
to ask prospective jurors, in addition to their length
of residency in the community, were:

“120. In this case you will be asked to view
males engaging in homosexual sexual activity. Are
you personally familiar with the attitudes and
norms of the homosexual community?”

“122. Do you believe your experience is inade-
quate to judge the appeal of these films to homo-
sexuals unless expert testimony is presented?”

“102. De you fee) the availability in the com-
munity of sexually explicit or graphic materials
is on the increase or the decrease?”

“103. Does this fact disturb or offend you?”

~

2“C.T.” refers to the Clerk’s Transcript of the Record
on Appeal, “Vol.” refers to the Volume number, and “Doc.”
refers to the Document Number.

wonliiinss

“105. Have you ever known of anyone to have
been harmed or hurt in any way by exposure
to sexually explicit or graphic materials?”

“111. Will you be able to view films which
depict certain sexually explicit activities, including
mouth and genital contact, anal intercourse, ejacu-
lation, homosexual activity and interracial sex with
open eyes and an open mind?”

“119. What organizations do you belong to in
the community?”

C. Midway through the trial the five allegedly ob-
scene films were projected for the jury. At the con-
clusion of the third film shown the jury, petitioner
brought to the Court’s attention that Juror Kohring
was not viewing the films but had been reading a
magazine during the screening. The judge directed him
to put away the magazine. Thereafter, Kohring did
not view much of the fourth film shown. At that
time petitioner’s counsel wrote a note to FBI Agent
Hod Hunt asking him to observe whether Kohring
was watching the fifth film during its screening. Mr.
Hunt was instructed not to make this observation by
Assistant United States Attorney John Lund and, ac-
cordingly, Hunt averted his eyes from the jury box
during the showing of this final film. Again, Kohring
did not view the screen for more than seconds at
a time. (R.T. Vol. 8 at D-123 to D-129.) News
personnel in attendance at the trial observed juror
Kohring avert his eyes and so reported it. See Affidavit
of W. Michael Mayock and newspaper clippings and
note to Hunt appended thereto. (C.T. Vol. 2, Doc.
51.)

Petitioner made a motion to replace Kohring with
an alternate juror. The court rejected this request saying

—)

Kohring had paid sufficient attention and intimated
the jury would screen the films in the jury room
during deliberations. Significantly, the jury had no pro-
jector in the jury room and so did not see the films
again. (R.T. Vol. 11 at G-229.)

D. At the inception of the trial attorney Zell repre-
sented co-defendants Grassi and Sanders. Midway
through the trial, Grassi, still represented by Zell, en-
tered into a plea agreement with the prosecution on
the condition that he testify at trial. Grassi thereafter
obtained a new counsel, Hall, who advised him not
to waive his attorney-client privilege with Zell since
Hall had ascertained from Grassi that Zell could im-
peach Grassi with other crimes Grassi had confidentially
communicated to Zell. At a hearing Grassi advised
he would testify if Walter's case were severed from
Sanders’. His testimony would have been exculpatory
of Walter on the scienter issue in that petitioner did
not knowingly transport the films by common car-
rier (R.T. Vol. 4 Supp. at 23) and did not know
the “nature, character and contents” of the films.
(R.T. Vol. 8 at D-10; Vol. 9 at E-3, E-5, E-9,
E-117 to E-121.)

Petitioner was prejudiced not only in being tried
with Sanders but with Sanders’ lawyer as well. Zell
was shown to have advised one witness, Maxey, to
“take the Fifth” Amendment before the Grand Jury
(R.T. Vol. 9 at E-93 to E-94) and to have prepared
Government’s Exhibit 13 (Appendix E hereto), a
letter Zell wrote to an accountant attributing ownership
of certain defendant corporations to defendants Grassi
and Sanders which the Government contended was
false. Petitioner sought unsuccessfully to have a hearing

=)

on Zell’s obvious conflicts of interest one month in
advance of trial. (C.T. Vol. 2, Doc. 39 at 2.)

E. Viewing the trial evidence in the light most
favorable to the Government, there was evidence that
petitioner and defendant Sanders were partners who
jointly operated an extensive network of adult cinemas,
bookstores and distribution warehouses. Defendant
Sanders and all other defendants, with the exception of
petitioner, were shown to have authorized the shipment
of 871 8mm films which culminated in the indictment
at bar. There was no evidence that petitioner had
ever seen these films or had any knowledge of their
nature, character or contents. There was no evidence
petitioner exercised any role in the business within
either two months before or after the shipment of
film. Finally, there was no evidence that any other
shipment made by the business contained obscene ma-
terial.

F. Petitioner proffered at least five jury ‘instructions
which sought to have the term “average person” in
the obscenity formulation defined as “average adult.”
(C.T. Vol. 2, Doc. 45.) For example, proposed instruc-
tion No. 22 read in pertinent part:

“The term ‘average adult person’ as used in
these instructions is a hypothetical composite
person who typifies the entire community including
persons of both sexes... .

“*Adult’ means all persons of age of 18 or
older.”

The trial judge refused to give a charge defining “per-
son” as “adult.” The court likewise declined petitioner’s
proffered instruction No. 48 that if “the jury is unable

a

to ascertain the meaning of ‘the average adult person,’
or of ‘contemporary community standards’ . . . then
the Government has failed to prove its case beyond
a reasonable doubt.” Petitioner had sought to develop
on cross-examination of the Government’s expert witness
that certain terms used in the obscenity test, such
as “the average person,” were incapable of ascertain-
ment. It was suggested that because that term is in
the singular and includes men and women, then of
necessity “the average person” must be a transsexual.

Petitioner asked the court to give the following in-
struction:

“The predominant appeal to prurient interest
is judged with reference to average adults unless
it appears from the nature of the matter or the
circumstances of its dissemination, distribution or
exhibition, that it is designed for clearly defined
deviant sexual groups, in which case the predomi-
nant appeal of the matter shall be judged with
reference to its intended recipient group.”

Instead, the court delivered this charge:

“In addition to considering the average or nor-
mal person, the prurient appeal requirement may
also be assessed in terms of the sexual interest
of a clearly defined deviant sexual group if you
find, beyond a reasonable doubt, that the material
was intended to appeal to the prurient interest
of such a group as, for example, homosexuals.”
(Emphasis added. )

G. Trial commenced on August 10, 1977, and on
August 19, 1977, the jury rendered a verdict finding
petitioner guilty on all eleven counts. (R.T. Vol. 11

at G-231.) On October 21, 1977, the Honorable Wm.
Terrell Hodges, United States District Judge, after deny-
ing petitioner’s motions for a new trial and for judgment
of acquittal, sentenced petitioner to concurrent three
year terms of imprisonment on all counts. That same
day petitioner filed a timely Notice of Appeal (C.T.
Vol. 2, Doc. 59) and was allowed/to_ remain on $25,000
corporate surety bail pending the outcome of his appeal.
Petitioner duly filed his appellate briefs in the Court
of Appeals. The judgment of the District Court was
affirmed on April 2, 1979. A timely petition for rehear-
ing with suggestion for determination en banc was
denied on June 15, 1979. An order staying the issuance
of the mandate was granted on June 22, 1979, provided
a petition for writ of certiorari is filed in the clerk’s
office of this Court on or before July 15, 1979.

—
REASONS FOR GRANTING THE WRIT.

1. The FBI’s acceptance from a third party of
films wrongfully within that party’s possession was a
“seizure” subject to the warrant requirement of the
Fourth Amendment, or alternatively, whether the rule
fashioned in Burdeau v. McDowell, 256 U.S. 465,
fifty years ago requires a two-step analysis of the
“seizure”—that by the third party and that of the
government—where First Amendment concerns are in-
volved as has been held by the Eighth Circuit but
not by the Fifth or Ninth Circuits.

More than fifty years ago in Burdeau v. McDow-
ell, 256 U.S. 465, 475, the Supreme Court held “that
papers stolen by a thief and turned over to the govern-
ment could be used as evidence at trial. The Court
did not explicitly consider whether the government’s
acceptance of the papers was a seizure.”* However,
when First Amendment concerns are at stake “the
most scrupulous exactitude” must be given the constitu-
tional requirements of the Fourth Amendment. Stanford
v. Texas, 379 U.S. 476, 485. The First Amendment
operates as an independent source of restrictions wpon
the power of the police to take expressive material
since a prompt judicial determination in an adversary
setting is mandated to obviate prior restraint problems.
Heller v. New York, 413 U.S. 483, 495. . . . Where, as
here, the government acquires films which are the prod-
uct of a third party search and fails to observe the
minimum procedural safeguards prescribed by the Su-
preme Court the acquisition must be deemed a “seizure”
both because it is a deprivation of a legitimate property
interest (see Rakas v. Illinois, 439 U.S. 128) and

8Dissenting opinion of Judge Wisdom.

—— ee

_

because it operates as a prior restraint which upsets
reasonable expectations that the property would be
subject to prompt judicial return (Heller, supra) or
would remain private. In short, where First Amendment
concerns are involved a two-step analysis of the “sei-
zure” must be made-—that by the third party and
that of the government—and Burdeau applies only in
the absence of an independent governmental invasion
of privacy rights protected by the Fourth Amendment.
The majority opinion of the panel failed to discuss
this issue.

As Judge Wisdom’s dissent incisively demonstrated,
the Burdeau rule is a. anachronism discredited by
commentators.’ Its functional twin the “silver platter”
doctrine was discarded nearly twenty years ago. Elkins
v. United States, 365 U.S. 206. Developments in Fourth
Amendment doctrine have undercut the practical func-
tion of Burdeau which was decided when there were
few justifications for warrantless seizures. Today our
society is expanding, not contracting, its legitimate ex-
pectations of privacy. Although Rakas v. Illinois, 439
U.S. 128, disapproves “arcane distinctions developed in
property . . . law,” under Burdeau a “seizure” is
determined by the status of the trespasser—official
versus private. It is difficult, if not impossible, to recon-
cile Burdeau with Shelley v. Kraemer, 344 U.S. 1
(1948) which held the “state action” doctrine forbids
judicial support of certain private acts which, if carried
out by government would be unconstitutional. In sum,
some flexibility in Burdeau is required to accommodate

*See, e.g., Note, Private Searches and Seizures, 90 Harv.
L. Rev. 463 (1976); Note, The Fourth Amendment Right
of Privacy: Mapping the Future, 53 Va. L. Rev. 1314, 1336-59
(1969); Note, Seizures by Private Parties: Exclusion in Crim-
inal Cases, 19 Stan. L.Rev. 608 (1967).

=

reasonable modern expectations of privacy, particularly
where they intersect First Amendment values.

The Eighth Circuit in United States v. Kelly, 529
F.2d 1365 (8th Cir. 1976) concluded that where a
common carrier delivers to the government First
Amendment materials uncovered during a_ private
search, the government’s acceptance of said items con-
stitutes a “seizure” requiring a warrant. The majority
of the panel refused to follow Kelly and instead erro-
neously followed United States v. Sherwin, 539 F.2d
1 (9th Cir. 1976) (en banc) which concluded under
similar facts that there was no “seizure.” The brilliant
dissenting opinion of Judge Wisdom and Note, Private
Searches and Seizures, United States v. Kelly and
United States v. Sherwin, 90 Harv. L. Rev. 463 (1976)
both comprehensively analyze these two cases and con-
clude without reservation that the approach of Kelly
is preferable to that of Sherwin in accommodating
both First Amendment rights and the privacy interests
of absent third parties.

A. Every action undertaken by the shippers of the
films was consistent with an expectation of privacy.
The twelve boxes of film were double-wrapped and
reenforced to prevent accidental breakage while in trans-
it. Previous shipments of film directed to “Leggs, Inc.”
on a “Will Call” basis had not been reforwarded to
a Greyhound substation and “L’Eggs Products, Inc.”
had not been contacted. It was reasonable to expect
that no one would both claim shipped packages which
did not belong to them and then pay the collect charges
on those items. Moreover, it was reasonable to assume
that Greyhound would not release the shipped cartons
to someone who claimed no interest in them and refused

ene en nee TN NT TT ee eT REE

a

to pay the collect shipping charges due. The employ-
ment of a fictitious name on the shipment bills of
lading was an earnest attempt to ensure privacy since
common carrier pilferage or breakage occurs frequently,
as several witnesses testified, when the name of a
known adult entertainment business is used on the
bill of lading.° Also the assiduous attempts of the
shippers to locate their misdirected shipment is demon-
Strative of their expectation that the merchandise would
remain private. Finally, where the “contraband” in-
volved is 8mm films—the indictment did not charge
the film box covers with being obscene—the expectation
of privacy is at its greatest since (1) the films are
presumed legitimate in the absence of a judicial de-
termination to the contrary and (2) the film frames
are too small to be seen without the aid of a pro-
jector. Roaden v. Kentucky, 413 U.S. 496 (1973);
Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968).

In fact, the FBI chose not to screen the films for

two months after their seizure, although they knew
appellants were seeking to retrieve their merchandise
and even then maintained a reasonable expectation
that the films would remain private and would not
be viewed by others. See United States v. Haes, 551
F.2d 767 (8th Cir. 1977); United States v. Kelly,
529 F.2d 1365, 1368 (8th Cir. 1976).

B. The Government, relying heavily on United
States v. Sherwin, 539 F.2d 1 (9th Cir. 1976) (en
banc) has contended that its acquisition of the films
in issue did not fall within the scope of the Fourth

5Within a two month period one adult bookstore had seven
separate interstate shipments addressed to it as consignee rip
open “inadvertently.” United States v. Kelly, 529 F.2d 1365,
1368 (8th Cir. 1976).

poe en

Amendment since there is no “seizure” if property
is consensually transferred by a third party to the
Government. Alternatively, the Government advanced
the third party consent exemption to the warrant re-
quirement of the Fourth Amendment as justification
for its seizure of the films. Neither theory has factual
underpinning.

Admittedly, employees of L’Eggs Products, Inc.
(LPI) voluntarily contacted the FBI to inquire as
to what they should do with the misdirected shipment
of films in their possession. FBI Agent Mandyck, know-
ing the shipment was “misdirected” and, accordingly,
not rightfully within the possession of LPI, instructed
LPI to secure the films in a safe place until the
FBI could come by and pick them up. (R.T. Vol.
1 Supp. at 170-71, 107, 133.) However, a “seizure”
is not complete until there is an effective appropriation
(Lustig v. United States, 338 U.S. 74, 78) and the
FBI waited five days to appropriate the films. During
this hiatus, LPI denied having the films to defendant
Grassi, thereby demonstrating their subservience to
the government. (R.T. Vol. 4 Supp. at 8-9.) Also
Greyhound employee Askew testified he did not tell
defendants the whereabouts of the films per FBI instruc-
tions and Agent Mandyck admitted telling Askew to
get the names and phone numbers of those seeking
to retrieve the films. (R.T. Vol. 1 Supp. at 50-52,
207-08.) The only rational conclusion that may be
drawn from the aforesaid facts is that LPI and Grey-
hound employees were not acting voluntarily but rather
under the command and at the direction of the FBI
and that the FBI, knowing the films were wrongfully
acquired by LPI, participated in and encouraged their

=_

theft. It is only “[w]here no official of the federal
government has any connection with a wrongful seizure
or any knowledge of it until after the fact, [that]
evidence is admissible.” United States v. Mekjian, 505
F.2d 1320 at 1327 (Sth Cir. 1975). Thus, there was
neither a voluntary relinquishment of the films to the
FBI nor was there an absence of governmental partici-
pation in an illegal seizure.

The Government’s suggestion that the FBI acquired
the subject films pursuant to a valid third party consent
is unsupportable. LPI employees admitted LPI had
no entitlement to the packages, the films were taken
without paying the freight charges and the cartons
were not addressed to LPI. Moreover, Agent Mandyck
knew the films were “misdelivered” and retained for
five days by LPI while the defendants sought to regain
their merchandise. Obviously, the actions of defendants
in attempting to retrieve their films were indicative
of the fact that no consent had been given to LPI
to relinquish the films to the FBI. Indeed, if LPI
had authority over the films it was clearly lost during
the five day interval between the time the FBI was
contacted and the time it picked up the films.

C. The majority opinion claims that the acquisition
of the twelve cartons of film by the FBI from LPI
was not a “seizure” under the holding of Sherwin,
supra, since it was the product of a voluntary relin-
quishment. This holding of Sherwin is not without
detractors. McSurely v. McClellan, 553 F.2d 1277
(D.C. Cir. 1976) (en banc); United States v. Kelly,
529 F.2d 1365 (8th Cir. 1976); United States v.
Haes, 551 F.2d 767 (8th Cir. 1977): Private Searches
and Seizures: United States v. Kelly and United States
v. Sherwin, 90 Harv. L. Rev. 463 (1976).

— Ts

“Placing the Government’s acceptance of printed ma-
terials outside Fourth Amendment constraints allows
for the possibility of Government sanctioned private
censorship without judicial supervision,” “might deter
the dissemination of legitimate expression via interstate
common carriers,” and “presents a problem of prior
restraint.” 90 Har. L. Rev. at 467. All of the concerns
expressed above were set in motion in the case at
bar when LPI turned over to the FBI the cartons
of film it wrongfully withheld from defendants. “Co-
operation of a custodian without authority to grant
access may obviate use of force, but it does not validate
an otherwise unlawful search and seizure.” McSurely
v. McClellan, 553 F.2d 1277, 1291 (D.C. Cir. 1976)
(en banc).

The Harvard Law Review article in finding the
approach of Kelly preferable to that of Sherwin criti-
cizes the absolutist scope of the Burdeau v. McDowell
exemption, concluding that developments in Fourth
Amendment doctrine have undercut the practical func-
tion of Burdeau. Furthermore, the article characterizes
the government’s conduct in Kelly and Sherwin as
a “seizure” because it constituted a deprivation of the
defendants’ property interests. These property interests
help define the scope of the right to privacy and
must be presumed legitimate where First Amendment
material is involved. Accordingly, the Government’s
appropriations in Kelly, Sherwin and the case at bar
were “seizures.” 90 Harv. L. Rev. at 467-72.

2. The FBI’s screening after a two-month hiatus
of films received from a third party who had not
viewed the films constituted both a “secondary search”
subject to the warrant requirement of the Fourth

~_

Amendment as had been held in a similar case by
the Eighth Circuit as well as a “search” within the
teaching of United States v. Chadwick, 433 USS. 1.

After obtaining the subject 8-mm films from
L’Eggs Products, the FB! waited two months to screen
the films to ascertain what they had. The individual
frames of 8-mm film were too small to be seen with
the naked eye. Although the box covers for the films
purported to describe in graphic fashion the content
of the respective films, the box covers were entitled
to a presumption of non-obscenity (Roaden v. Ken-
tucky, 413 U.S. 496), were never charged as being
obscene and, moreover, did not present probable cause
for the issuance of a warrant. United States v. Tupler,
564 F.2d 1294 (9th Cir. 1977).

In United States v. Haes, 551 F.2d 767 (8th Cir.
1977), the FBI, having been contacted by a common
carrier who had discovered sexually explicit films and
having brought a projector to the common carrier’s
office where they screened the films without first obtain-
ing a warrant, was held to have conducted a separate,
independent search which was illegal since no exception
to the warrant requirement existed. The majority opin-
ion of the panel purports to distinguish Haes by declar-
ing that L‘Eggs employees had fully ascertained the na-
ture of the films even though they had never screened
them. Therefore, the majority concludes, “the FBI’s
subsequent viewing of the movies on a projector did
not ‘change the nature of the search’ and was not
an additional search subject to the warrant require-
ment.” It is obvious that the FBI both changed the
nature of the search and conducted an additional search
when they projected films that had never been viewed

a

by L’Eggs employees. A fortiori, the two-month hiatus
between acquisition and screening negated the possibil-
ity that one continuous search transpired.

The majority opinion also attempts to distinguish
United States v. Chadwick, 433 U.S. 1 (1977) by
declaring that “the FBI took control of property that
had already been searched by a private party and
did not conduct any additional search of its own requir-
ing a warrant.” This argument is flawed for the same
reasons set forth above. Moreover, this interpretation
of Chadwick would emasculate the decision. In Chad-
wick a one-hour delay in conducting a warrantless
search of a footlocker for drugs was held to be too
long. How can it possibly be said that a two month
delay in conducting a warrantless search of presump-
tively protected First Amendment material was not
too long?

A. Assuming, arguendo, that LPI validly consented
to the FBI’s seizure of the subject films, there was
no consent to the FBI’s search of the films which
occurred when they were screened two months later.
Neither the FBI nor anyone at LPI knew the contents
of the films since the 8mm film frames could not
be seen with the naked eye. (R.T. Vol. 1 Supp. at 65,
119, 137, 155.) In addition to not being charged
as being obscene, the film box covers did not present
probable cause for one to entertain the belief that
the films were obscene. United States v. Tupler, 564
F.2d 1294, 1297-98 (9th Cir. 1977). However, during
the two-month period prior to the screening of the
films the FBI was cognizant that defendants were seek-
ing the return of their films. Accordingly, any imputed
consent must be deemed revoked. Mason v. Pulliam,

EO OO ET RE OTS NEE TEN OT eR AT EN ee Ten eT

a Nee

557 F.2d 426 (5th Cir. 1977) (taxpayer who consented
to IRS possession of his papers for examination may
withdraw his consent and reinvoke his Fourth Amend-
ment rights as to all papers not then viewed or copied).
Employing the logic of Mason to the case at bar
it is clear the FBI viewed the films without the defend-
ants’ consent and that search is properly a subject
of suppression.

B. If the Government undertakes any new or dif-
ferent searches after being apprised that contraband
has been unearthed in a private search, then a warrant
is required unless an exception to the warrant require-
ment exists. United States v. Haes, 551 F.2d 767,
771 (8th Cir. 1977).

The opening of the film boxes by FBI agents and
their unsuccessful attempt to “eye view” the contents
of one of the 871 films at LPI places the government
outside the scope of Sherwin, since there “[w]hen
the agents arrived they did not conduct a more ex-
tensive search.” Sherwin, supra, at 6-7. There is only
one chance in 871 that the FBI did not conduct
a more extensive search. Those are the odds against
the FBI selecting the same film to “eye view” as
did LPI employee Shults. Moreover, only five of
the 25 different film titles were charged with being
obscene. There was only a 20 percent chance that
a charged film was “eye viewed.”

C. The FBI’s subsequent screening of films it re-
ceived from LPI constituted a “search” prohibited in
the absence of a warrant by the Fourth Amendment.
Common sense dictates that this be so. Until the films
were projected on a screen there was no probable

_—

cause to believe a crime had been committed,® so
how could the viewing of the films not be a “search”?

In both United States v. Sherwin, 539 F.2d 1 (9th
Cir. 1976) (en banc) and United States v. Kelly,
529 F.2d 1365 (8th Cir. 1976) FBI agents simply
reinspected magazines and books which had already
been examined by freight agents. Significantly, in the
case at bar the film box covers were not charged
with being obscene and the film could not be “eye
viewed.” Therefore the FBI, unlike the situation in
Sherwin and Kelly, was unable to judge the material
either taken as a whole or at all for that matter.
In screening the films the FBI engaged in a secondary
search similar to the one condemned in United States
v. Haes, 551 F.2d 767, 771 (8th Cir. 1977). If any-
thing, however, the instant search was more unreason-
able since the Government never attempted to obtain
a warrant, conceded there were no exigent circum-
stances, held the films for two months before viewing
them and confessed that a warrant could have been
obtained had one been sought.

Even if Sherwin is accepted as the controlling au-
thority on the “seizure” issue, it does not mean the
FBI’s subsequent screening of the films was not a
“search” governed by the Fourth Amendment. More
exacting standards apply to searches and seizures of
First Amendment-protected materials than to narcotics,
gambling paraphernalia and other contraband. Roaden

*The box covers for the film were entitled to a presumption
of non-obscenity (Roaden v. Kentucky, 413 U.S. 496 (1973)),
were not charged as being obscene and did not present probable
cause for the issuance of a warrant. (United States v. Tupler,
564 F.2d 1294 (9th Cir. 1977).) The film itself could not
be seen with the naked eye.

ee

v. Kentucky, 413 U.S. 496 (1973); Stanford v. Texas,
379 U.S. 476 (1965); A Quantity of Books v. Kansas,
378 U.S. 205 (1964). Also Fourth Amendment
“search” and “seizure” issues are appropriately sub-
jected to bifurcation. For example, in United States
v. Chadwick, 433 U.S. 1 government agents had prob-
able cause to believe defendants’ footlocker contained
contraband and, accordingly, they seized it at the time
they arrested the defendants, but delayed their search
of the luggage for one hour after the seizure. Since
the police seizure was incident to an arrest it was exempt
from the Fourth Amendment warrant requirement. The
delayed warrantless search of the footlocker, however,
did not fall within the compass of any recognized
exception to the warrant requirement and was held
constitutionally defective.

The lesson of Chadwick is instructive in the instant
case. A sealed box of film is like a sealed trunk.
It is immaterial that a Government acquisition be
deemed a voluntary relinquishment or a consent seizure
or a seizure incident to arrest, in all cases a warrant
to seize is not mandated. But a warrantless search
of the acquired items which contain potential contra-
band may not be delayed unless a search warrant
is first obtained. In postponing their search of the
subject films for two months, the FBI lost any possible
exemption from the search warrant requirement of the
Fourth Amendment it might have asserted. Therefore
the search was illegal.

3. The Government by appropriating presumptively
protected First Amendment material received from a
third party for one and one-half years without requesting
a judicial determination of the obscenity vel non of
said material committed a prior restraint the penalty

—

for which is suppression of the materials’ use in a
criminal trial in accordance with the provisions of the
First, Fourth and Fifth Amendments to the Constitu-
tion and the interpretive decisions of this Court.

There exist a plethora of cases that restrict
the Government’s possession of another’s First Amend-
ment materials to situations where a prompt adversary
hearing is available so that prior restraint will not
occur. Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546 (1975); Roaden v. Kentucky, 413 U.S. 496
(1973); Heller v. New York, 413 U.S. 483 (1973);
Blount v. Rizzi, 400 U.S. 410 (1971); Lee Art Theatre,
Inc. v. Virginia, 392 U.S. 636 (1968); Freedman
v. Maryland, 380 U.S. 51 (1965); Stanford v. Texas,
379 U.S. 476 (1965); A Quantity of Books v. Kansas,
378 U.S. 205 (1964); Marcus v. Search Warrant,
367 U.S. 717 (1961); Speiser v. Randall, 357 US.
513 (1958).

In its second opinion filed June 15, 1979, the major-
ity of the panel cite a number of lower court decisions
which hold that when materials are seized in violation
of the First Amendment, the appropriate remedy is
return of the seized property, but not its suppression
as evidence at trial. The cases cited involve the seizure
of expressive matter pursuant to warrant but without
an adversary hearing. Clearly the case at bar is distin-
guishable from these cases not only in that no warrant
was involved but also importantly, in that the govern-
ment held the appropriated materials for one and one-
half years before an indictment was returned. In foot-
note seven of his dissent Judge Wisdom suggests that
“Heller and Roaden may obliterate any distinction be-
tween violations of the First and Fourth Amendments
when a seizure of expressive matter is defective for

SOP aa a ae

= =

lack of a determination of probable obscenity by a
neutral magistrate.”

It also appears that no court has ever considered
whether suppression of evidence is an appropriate reme-
dy for a prior restraint under the Due Process Clause
of the Fifth Amendment. Yet this Court in United
States v. Russell, 411 U.S. 423, 431-32, stated, “[Wle
may some day be presented with a situation in which
the conduct of law enforcement agents is so outrageous
that due process principles would absolutely bar the
government from invoking judicial processes to obtain
a conviction, cf. Rochin v. California, 342 U.S. 165
(1952)... .” It is submitted that the massive nature
of the seizure herein (871 films were taken), the
fact only five of the twenty-five film titles were ever
charged with being obscene, the government’s knowl-
edge that defendants were seeking return of their prop-
erty, the failure of the government to give either direct
notice to petitioner that it had his property if he
wished to claim it or to place a notice of seizure
in a newspaper of general circulation (cf. Sniadach
v. Family Finance Corporation, 395 U.S. 337; Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306),
and the government’s failure to seek an obscenity vel
non determination from a neutral magistrate during
a two-year period manifest the government’s intention
to impose nonjudicial suppression of a citizen’s presump-
tively protected First Amendment property without af-
fording the citizen the niceties of procedural due proc-
ess. The result, particularly when coupled with First
and Fourth Amendment considerations earlier ad-
dressed, is shocking to the conscience and in violation
of due process under the Fifth Amendment. The sup-

=)

pression of the appropriated films as evidence is a
just and proper remedy under the circumstances of
this case.

4. In an obscenity prosecution derivative proof of
scienter solely through evidence of petitioner’s participa-
tion in a management role in a presumptively legal
business venture which shipped numerous films, and
without any further proof that he knew of or au-
thorized the solitary shipment of films charged as being
obscene, deprived petitioner of freedom of speech and
press and due process of law, contrary to the provisions
of the First and Fifth Amendments to the Constitution
and the interpretive decisions of this Court.

The Circuit’s opinion erroneously equates an in-
dividual’s agreement to participate in a presumptively
legal business venture with guilty knowledge of a soli-
tary criminal violation occurring in the course of the
operation of that business by others. “In general an
individual defendant may be criminally liable on the
basis of an act or omission of another person, only
if it appears beyond reasonable doubt that he willfully
ordered or directed, or willfully authorized or consented
to, the act or omission in question.” Devitt & Blackmar,
Federal Jury Practice and Instructions, Vol. 1, § 12.09
(1977) (emphasis added). There is NO evidence that
petitioner ordered, directed, authorized or consented
to “the act in question” (the September 25, 1975,
interstate shipment of obscene films) since all evidence
touching upon him dealt with time frames either two
months before or two months after the shipment date.
Instead, the evidence shows other defendants directed
the shipment in question.

The evidence recounted in the Circuit’s opinion shows
at most petitioner’s involvement in a legal enterprise

= Ss

which dealt in all situations except the one at bar
in material presumptively protected by the First Amend-
ment.’ Roaden v. Kentucky, 413 U.S. 496. It strains
credulity to suggest this evidence and nothing more
proved beyond a reasonable doubt that on September
25, 1975, petitioner: (1) Knew “the contents, character
and nature” of the subject films he was never shown
to have seen (Hamling v. United States, 418 U.S.
87, 123); (2) Knowingly used a common carrier to
ship these obscene materials interstate; and (3) Know-
ingly transported these obscene materials interstate for
the purpose of sale or distribution. The panel’s deter-
mination that scienter in First Amendment cases may
be proved derivatively by a pattern of non-criminal activ-
ity removed in time from the incident charged vitiates
the scienter requirement spelled out by this Court.
Hamling, supra; Smith v. California, 361 U.S. 147
(1959).

It is patent that in calculating whether obscenity exists
the material must be taken as a whole (Miller v. California,
413 U.S. 15) and an individual’s subjective belief in the
obscenity of material is irrelevant. (Clicque v. United States,
514 F.2d 923 (Sth Cir. 1975).) The recitation of testimony
relating to the contents of warehouses and bookstores is irrelevant
since such material cannot be seen as a whole (United
States v. Tupler, 564 F.2d 1294 (9th Cir. 1977)), nor can
it be known to have traveled in interstate commence at the
direction of defendants herein, nor can it be known whether
said material is hard-core or soft-core. Indeed, under the
law it must be presumed that such material is not obscene.

Roaden v. Kentucky, 413 U.S. 496. Accordingly, there can |

be no conspiracy with regard to such material not before
the court since a conspiracy involves an agreement to commit
an illegal act, and there is nothing illegal about material
presumptively protected by the First Amendment. Therefore,
the conspiracy charge as to petitioner (and, of course, as
to the other defendants) rises or falls on whether he (or
they) can be tied to the September 25, 1975, shipment of
twelve cartons of film, which is the only “object” of the
conspiracy it is permissible to consider.

eee ——

a jk

5. In an obscenity prosection the refusal of the
district court to instruct the jury that in calculating
the more of the community the term “average person”
means “average adult” viclated the teaching of Pinkus
v. United States, 436 U.S. 293, that the community
includes all adults who comprise it since “person” sub-
sumes the class “children” and the instruction therefore
deprived petitioner of freedom of speech and press
and due process of law, contrary to the provisions
of the First and Fifth Amendments to the Constitution.

Appellants submitted at least five jury instruc-
tions seeking to have the court define “average person”
as meaning “average adult.” Pinkus v. United States,
436 U.S. 293 said the community includes all adults
who comprise it and “it was error to instruct the
jury that [children] were a part of the relevant commu-
nity.” By failing to instruct the jury to consider only
“adults” in calculating the composition of the contem-
porary community, the trial judge left open for the
jury’s speculation whether “person” included “children.”
Anyone who understands the English language recog-
nizes that “children” are subsumed within the class
“person.” Accordingly, if the jury failed to include
children as part of the contemporary community, they
would have to have disobeyed the court’s instructions.
It is more likely than not that the jury followed the
trial judge’s directives. In doing so they necessarily
considered “children” as part of the community and
thereby rendered a verdict which must be struck down
for the reasons set forth by this Court in Pinkus,

The panel’s opinion quotes from instructions using
the words “average person” and “average and normal
attitude toward, and an average interest in, sex” and

—

contends that these words limited consideration to
adults. That is not the case, however. Taken in context
what the quoted instructions did was to differentiate
the non-deviant community from the deviant communi-
ty. Moreover, even if the panel’s viewpoint is accepted
as correct, the instructions make it possible for a jury
to conclude that the “average person’ has some of
the attributes of a child. This is exactly what was
condemned in Pinkus. More significantly, even if a
jury could have concluded that “person” meant “adult,”
it cannot be certain that this is what it did do since
its verdict was a general one. Sandstrom v. Montana,
divi Rs: iateceue’

6. In an obscenity prosecution involving films of
an exclusively homosexual orientation an instruction
foreclosing jury assessment of the prurient appeal, if
any, of the films to homosexuals absent proof beyond
a reasonable doubt that the films were intended to
appeal to the prurient interest of homosexuals deprived
petitioner of freedom of speech and press and due
process of law, contrary to the provisions of the First
and Fifth Amendments to the Constitution and the
interpretive decisions of this Court.

The opinion of the Circuit omitted entirely a dis-
cussion of the manifestly erroneous jury instruction
which directed that prurient appeal be measured by
the standards of the average person when the films
were clearly directed to a deviant group. A fortiori,
the instruction given precluded any consideration wheth-
er the films had a prurient appeal to members of
the homosexual community. ©

All the subject films depicted male homosexual con-
duct exclusively and it was undisputed that the intend-

=

ed and probable recipients of the films were homo-
sexuals. The court, over objection, instructed in essence
that prurient appeal is to be judged with reference
to the average person instead of only to members
of the intended deviant recipient group contrary to
the teaching of Mishkin v. New York, 383 U.S. 501,
and Pinkus v. United States, 436 U.S. 293 (error
to include children as part of community for purposes
of determining prurient appeal unless children shown
to be intended and probable recipients). The court
admonished the jury that before pruriency could be
assessed in terms of sexual interest of the intended
and probable recipients of the films, i.e., homosexuals,
there must be proof beyond a reasonable doubt that
the films were “intended to appeal to the prurient
interest” of homosexuals.° Whether the maker of the
films intended them to appeal to the prurient interest
of homosexuals is not only irrelevant but impossible
to ascertain. Accordingly, since such an intent could
not be proved beyond a reasonable doubt, the jury
was foreclosed from assessing whether the films ap-
pealed to the prurient interest of members of the homo-
sexual community. The consequence of requiring proof
of intent beyond a reasonable doubt “was to unconstitu-
tionally shift the burden of persuasion to petitioner
such as was done in Mullaney v. Wilbur, 421 U.S.
684.” See In re Winship, 397 U.S. 358, 364.

8The court instructed as follows:

“In addition to considering the average or normal person,
the prurient appeal requirement may also be assessed
in terms of the sexual interest of a clearly defined sexual
group if you find, beyond a reasonable doubt, that the
material was intended to appeal to the prurient interest
of such a group as, for example, homosexuals.”

=

7. A juror who read a book and frequently stared
at the floor on the sole occasion when the allegedly
obscene films were screened for the jury was either
incompetent to render a judgment regarding the ob-
scenity vel non of the films which must be “taken
as a whole” under the directive of Miller v. California,
413 U.S. 15, or so prejudiced against the defense
that petitioner was deprived of freedom of speech and
press, due process of law, and an impartial jury, con-
trary to the provisions of the First, Fifth and Sixth
Amendments to the Constitution.

There is substantial evidence that Juror Kohring
was reading a magazine and staring at the floor during
much of the time when the five films in question
were screened in court for the jury. It was the only
occasion on which the jurors saw these films.

Under the facts presented a magistrate seeing only
what Kohring saw would not have probable cause to
issue a warrant to seize the film. United States v.
Tupler, 564 F.2d 1294, 1297-98 (9th Cir. 1977).
This is because Miller v. California, 413 US. 15,
requires that a film be taken as a whole with regard
to application of the third prong value test of the
obscenity formulation. If Kohring did not have probable
cause to believe the films obscene, then a fortiori he
could not have found them obscene beyond a reasonable
doubt and petitioner was deprived of his Fifth Amend-
ment rights.

Juror Kohring was incompetent to render a judgment
regarding the obscenity vel non of the films. Moreover,
Kohring should have been replaced by an alternate
juror who was not so obviously prejudiced against
the defense since petitioner was entitled under the
Sixth Amendment to an impartial jury.

Pe ee

—37—

8. In an obscenity prosecution involving films of
an exclusively homosexual orientation the refusal of
the district court to voir dire the veniremen concerning
their length of residence in the community, participation
in community organizations, knowledge of community
standards from the standpoint of personal exposure,
knowledge of the mores, customs and practices of the
homosexual community and opinion whether sexually
explicit matter causes harm negated the mandate of
Smith v. United States, 431 U.S. 291, that a defendant
be given reasonable latitude in presenting voir dire
questions to the veniremen and, accordingly, deprived
petitioner of freedom of speech and press and due
process of law, contrary to the provisions of the First
and Fifth Amendments to the Constitution.

The trial court erred in failing to ask the requested
voir dire questions propounded by petitioner particularly
as they related to the jurors’ length of residence in
the community, participation in community organiza-
tions, knowledge of community standards from the
standpoint of personal exposure (since comparison evi-
dence was not allowed to be introduced), opinion as to
whether sexually explicit matter causes harm, their
knowledge of the mores, customs and practices of the
homosexual community and their opinion whether sex-
questions to the veniremen. Smith leaves the decision
States, 431 U.S. 291, 308, mandates that a defendant
be given reasonable latitude in presenting voir dire
questions to the veniremen, Smith leaves the decision
of the propriety of a particular question to the discre-
tion of the trial court. It must be noted the trial
herein occurred in Florida at the time of Anita Bryant’s
Crusade. It was therefore especially important to peti-

—

tioner to obtain answers from the jurors to specific
and focused questions dealing with their beliefs, ex-
periences and prejudices. The voir dire questions sub-
mitted to the trial court by petitioner were the very
sort of questions Smith indicated were proper. The
failure of the court to ask these proffered questions
of the veniremen undoubtedly prejudiced petitioner.
Perhaps if the Court had allowed Appellant Walter’s
Requested Voir Dire Question 111 (“able to view ...
with open eyes and an open mind.”) (C.T. Vol. 2,
Doc. 45 at 14), the Kohring incident would not have
happened.

9. Due process of law under the Fifth Amendment
required that petitioner’s case be served from co-
defendant Sanders’ so that co-defendant Grassi, who
had entered a guilty plea during trial, could testify
to exculpate petitioner and inculpate Sanders on the
scienter issue, which Grassi had indicated he would
do but not unless there were a severance since his
former attorney was counsel for co-defendant Sanders
and could impeach Grassi with other crimes Grassi
had confidentially communicated to him if Grassi
waived his attorney-client privilege and testified in favor
of petitioner and against co-defendant Sanders.

At least five grounds necessitated the severance
of petitioner’s case from that of defendant Sanders.
First, Sanders was the subject of much adverse pre-
trial publicity. Second, trial testimony depicted Sanders
as having threatened a witness. Third, hearsay state-
ments by Sanders were improperly admitted against
Walter, contrary to Bruton requirements. Fourth,
Sanders was represented by an attorney who told a
prosecution witness to “take the Fifth Amendment”

pa eA

and who drafted a Government trial exhibit which
the Government contended was false. Fifth, had there
been a severance co-defendant Grassi would have testi-
fied without fear of impeachment by his former attorney
Zell to exculpate Walter on the scienter issue regarding
his knowledge of the shipment and the character of
its contents prior to its misdelivery. Each of the afore-
said grounds would warrant a severance; collectively,
they cry out for it. A severance should have been
granted under Rule 14, Fed. R. Crim. P., since peti-
tioner’s joint trial with defendant Sanders and _ his
counsel was so prejudicial that it was a clear abuse
of discretion not to grant a severance. See, e.g., United
States v. Marshall, 532 F.2d 1279 (9th Cir. 1976).

10. The refusal of the district court to give peti-
tioner’s proffered jury instruction on his theory of the
case developed through cross-examination that certain
terms in the obscenity formulation were incapable of
calculation deprived petitioner of freedom of speech
and press and due process of law, contrary to the
provisions of the First and Fifth Amendments to the
Constitution and the interpretive decisions of this Court.

One defense theory in the case was that certain
terms in the obscenity formulation were incapable of
ascertainment. For example, the defense contended both
during cross-examination and final argument that it
is impossible to calculate “the average person” and
because that term is in the singular and includes men
and women, then of necessity “the average person”
must be a- transsexual. “The average person” differs
from “the average reasonable man” of tort law not
only because the term is a logical impossibility, but

_ we

also because it must be proved beyond a reasonable
doubt instead of by a preponderance of the evidence.

When a defendant requests an instruction on a partic-
ular defense theory, he is entitled to receive it unless
it is unsupported by the evidence. United States v.
Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976)
(because cross-examination provided sufficient basis for
defense theory, failure to instruct was error); United
States v. Levy, 578 F.2d 896, 903 (2d Cir. 1978).
In the case at bar defendants’ cross-examination of
the prosecution’s expert witness directed itself at the
impossibility of calculating “the average person.” There-
fore, defendants were entitled to their requested instruc-
tion on a defense theory of the case.

Conclusion.

For the foregoing reasons a writ of certiorari should
issue to review the judgment and opinion of the United
States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

W. MICHAEL MAYOCK,

Attorney for Petitioner.

APPENDIX A.

Opinion of the Court of Appeals.
United States Court of Appeals, Fifth Circuit.

United States of America, Plaintiff-Appellee, v. Ar-
thur Randall Sanders, Jr., Gulf Coast News Agency,
Inc., Trans World America, Inc., a/k/a TWA, Inc.,
and William Walter, Defendants-Appellants. No. 77-
5715.

April 2, 1979.

The United States District Court for the Middle

District of Florida, Wm. Terrell Hodges, J., convicted
defendants of conspiracy, knowingly using common car-
rier to ship obscene materials interstate, and knowingly
using common carrier to transport obscene matter inter-

state for purpose of sale or distribution, and defendants.

appealed. The Court of Appeals, Ainsworth, Circuit
Judge, held that: (1) search by corporation’s employees
constituted a private search beyond scope of Fourth
Amendment; (2) FBI acceptance of films was not
a “seizure” within meaning of Fourth Amendment; (3)
Government’s viewing of films on movie projector did
not constitute separate independent search requiring
warrant; (4) evidence was sufficient to sustain convic-
tion, and (5) district court properly instructed jury
on contemporary community standards.

Affirmed.
Wisdom, Circuit Judge, filed a dissenting opinion.

Appeals from the United States District Court for
the Middle District of Florida.

Before WISDOM, AINSWORTH and CLARK, Cir-
cuit Judges.

AINSWORTH, Circuit Judge:

ae,

Arthur Sanders, William Walter, Gulf Coast News
Agency, Inc. (“Gulf Coast News”) and Trans World
America, Inc. (“TWA”) appeal their convictions under
18 U.S.C. § 371 for conspiring knowingly to use a
common carrier to ship obscene materials interstate,
in violation of 18 U.S.C. § 1462, and knowingly to
transport obscene matter interstate for the purpose of
sale or distribution, in violation of 18 U.S.C. § 1465.
Sanders, Walter and Gulf Coast News also challenge
their convictions for substantive violations of sections
1462 and 1465.’ Appellants all allege an unconstitu-

*Under 18 U.S.C. § 371,

If two or more persons conspire either to commit
any offense against the United States, or to defraud the
United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons
do gos to effect the object of the conspiracy, each
shall fined not more than $10,000 or imprisoned
not more than five years, or both.

18 U.S.C. § 1462 provides in pertinent part that

Whoever brings into the United States, or any place
subject to the jurisdiction thereof, or knowingly uses any
express company or other common carrier, for carriage
in interstate or foreign commerce—

(a) any obscene, lewd, lascivious, or filthy book,
phiet, picture, ae film, paper, letter, writing,
print, or other matter of indecent chracter; or. . .

Whoever knowingly takes from such express company
or other common carrier any matter or thing the carriage
of which is herein made unlawful—

Shall be fined not more than $5,000 or imprisoned
not more than five years, or both, for the first such
offense and shall be fined not more than $10,000 or
imprisoned not more than ten years, or both, for each
such offense thereafter.

18 U.S.C. § 1465 provides that

Whoever knowingly transports in interstate or foreign
commerce for the purpose of sale or distribution any
obscene, lewd, lascivious, or filthy book, pamphlet, picture,
film, paper, letter, writing, print, silhouette, drawing, figure,
image, cast, phonograph recording, electrical transcription
or other article capable of producing sound or any other
matter of indecent or immoral character, shall be fined

= =

tional search and seizure and attack the district court’s
jury instructions on obscenity; appellant Walter further
contends that he “was not shown to possess the requisite
scienter.” We find these assertions to be without merit
and therefore affirm the convictions.

I. Facts

According to the testimony at trial, on September
15, 1975, Richard Larson, the manager of appellant
Gulf Coast News, located in St. Petersburg, Florida,
ordered an employee to deliver 12 cartons, containing
a series of 8 mm. films entitled “David’s Boys,” to
Greyhound Bus Package Express in St. Petersburg
for shipment to Atlanta. The packages had a nonexistent
return address and named a fictitious corporation, “D
and L Distributors,” as shipper. Described as containing
printed matter, they were sent on a “will call” basis
to “Leggs, Inc.,” another fictitious company. “Legs”
was the nickname of a female employee at appellant
TWA’s Atlanta headquarters. When the cartons reached
Atlanta, Greyhound forwarded them to a branch station
located near L’Eggs Products, Inc. (“L’Eggs”), a manu-

not more than $5,000 or imprisoned not more than five
years, or both.

The trans tion as aforesaid of two or more copies
of any publication or two or more of any article of
the character described above, or a combined total of
five such publications and articles, shall create a presump-
tion that such publications oy articles are intended for
sale or distribution, but such presumption shall be rebut-
table.

When any pers is convicted of a violation of this
Act, the court .a its judgment of conviction may, in
addition to the penalty prescribed, order the confiscation
and disposal of such items described herein which were
found in the possession or under the immediate control
of such person at the time of his arrest.

“The series “David's Boys” included 25 individual movie
titles. The 12 cartons contained 871 reels of film.

iapiiies

facturer of women’s hosiery and regular customer of
Greyhound Package Express. After Greyhound in-
formed L’Eggs of the shipment, Michael Horton, a
L’Eggs Products employee, came to the terminal,
opened one of the cartons and discovered that it con-
tained sexually explicit movies. Horton returned to the
L’Eggs office and described the package’s contents to
a superior, William Fox. Concerned that his company
might be implicated in the transportation of porno-
graphic films, Fox drove to the Greyhound station and
brought the 12 cartons to the L’Eggs office. He and
several other employees opened all the packages and
found individual boxes of film. The top of each film
box showed the name “David’s Boys” and a drawing
of two nude males embracing and kissing; on the back
of each were the title of the individual movie and
a detailed description, in explicit terms, of the bizarre
homosexual acts depicted in the film. Fox then tele-
phoned the FBI, explained the nature of the films
and asked “them to come out and take the materials
away.” The FBI procured the films on October 1,
1975, and subsequently viewed them on a projector
at its offices. No warrant was obtained.

Appellants Walter and Sanders, who jointly operated
appellants TWA and Gulf Coast News, were indicted
along with both corporations under 18 U.S.C. § 371
on one count of conspiring knowingly to use a common
carrier to ship obscene materials interstate, in violation
of 18 U.S.C. § 1462, and knowingly to transport ob-
scene matter interstate for the purpose of sale and
distribution, in violation of 18 U.S.C. § 1465. Gulf
Coast News, Walter and Sanders were also charged
with five counts of substantive violations of section

a

1462 and five substantive violations of section 1465.*
The jury convicted TWA of conspiracy and returned
guilty verdicts as to Walter, Sanders and Gulf Coast
News on all eleven counts. The district court fined
TWA $10,000, Gulf Coast News $33,000 and sen-
tenced both Walter and Sanders to three years in
prison on each count, to run concurrently.

II, The Constitutionality of the Search and Seizure

Appellants first urge that the district court committed
reversible error in failing to suppress the five films
admitted in evidence at trial. Since appellants TWA
and Gulf made no pretrial motion to suppress, they
cannot raise this issue on appeal. United States v.
Bush, 5 Cir., 1978, 582 F.2d 1016, 1018. Though
appellants Sanders and Walter each made a timely
motion to suppress and return the films, the district
court sought to determine at the outset whether they
had standing to challenge the constitutionality of the
search and seizure. To establish such standing under
traditional Fourth Amendment analysis, a defendant
must either show presence on the searched premises
at the time of search, allege a proprietary or possessory
interest in the premises or objects searched or be
charged with an offense that includes as an essential
element possession of the seized evidence at the time
of the contested search and seizure. See Brown v.
United States, 411 U.S. 223, 229, 93 S.Ct. 1565,
1569, 36 L.Ed.2d 208 (1973); United States v. Hunt,
5 Cir., 1974, 505 F.2d 931, 939-40. “Generally, a
defendant satisfies the standing requirement if he has

5The five counts under section 1462 and the five section
1465 counts enumerated the same five movies from the “David’s
Boys” series: “Look at the Birdie,” “The Clean Up,” “Black
Rape,” “The Massage,” and “Loving Hands.”

Ber Wor

an adequate possessory interest in the place or object
searched to give rise to a reasonable expectation of
privacy.” United States v. Hunt, supra, 505 F.2d at
938.

In denying appellants’ suppression motion, the district
judge held that “shipping or causing or suffering to
be shipped by a common carrier . . . with a fictitious
name given for the shipper as well as the fictitious
name given for the consignee or addressee, amounts
to a relinquishment or abandonment of any reasonable
expectation of privacy. Or, stated another way, it seems
to me that it was reasonably foreseeable that what
actually occurred would occur. That is to say, that
there was substantial likelihood that the material would
be misdelivered and fall into the hands of some third
party, as actually happened in this case, where it would
be opened and its privacy, if it had any, invaded.”
There is merit in the district court’s conclusion. How-
ever, the Supreme Court has recently “dispens[ed]
with the rubric of standing . . . by frankly recognizing
that this aspect of the analysis belongs more properly
under the heading of substantive Fourth Amendment
doctrine,” Rakas v. Illinois, ........ ) Secs >» oe SACK.
421, 429, 58 L.Ed.2d 387 (1978) so we will focus
“on the extent of a particular defendant’s rights under
the Fourth Amendment, rather than on any theoretically
Separate, but invariably intertwined concept of stand-
MN Bey secnious if Xe ” eee , 99 S.Ct. at 428.

A. The Search by L’Eggs Products Employees

Appellants Sanders and Walter argue that the L’Eggs
Products employees, in opening the 12 cartons and
examining their contents without a warrant, conducted
an unconstitutional search. The Fourth Amendment’s

iniilibica,

warrant requirement, of course, is intended solely “as
a restraint upon the activities of sovereign authority,”
Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct.
574, 576, 65 L.Ed. 1048 (1921), and “a search...
conducted by a private individual for purely private
reasons, . . . does not fall within the protective ambit
of the Fourth Amendment.” United States v. Lamar,
5 Cir., 1977, 545 F.2d 48%, 489-90; United States
v. Jones, 5 Cir., 1972, 457 F.2d 697, 699; Barnes
v. United States, 5 Cir., 1967, 373 F.2d 517, 518.
However, if under the circumstances of the case the
private party “acted as an ‘instrument’ or ‘agent’ of
the government,” the ostensibly “private” search must
meet the amendment’s standards. United States v. Bo-
mengo, 5 Cir., 1978, 580 F.2d 173, 175. See Lustig
v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372,
1374, 93 L.Ed. 1819 (1949). Before the L’Eggs Prod-
ucts employees ever contacted the FBI, they had on
their own initiative taken the shipment of films from
the bus terminal, opened the cartons, examined the
individual film boxes and ascertained the nature of
the films. Since “there is no indication in the record”
that in so doing the L’Eggs employees “acted at the
behest or suggestion, with the aid, advice or encourage-
ment, or under the direction or influence of the F.B.I.,”
we conclude that these activities constituted a private
search, beyond the scope of the fourth amendment.
United States v. Clegg, 5 Cir., 1975, 509 F.2d 605,
609.
B. F.B.I. Acceptance of the Films

Nevertheless, Sanders and Walter contend that the
FBI unconstitutionally seized the films, by accepting
them from the L’Eggs employees without obtaining
a warrant. In making this assertion, they rely principally

alii

on the Eighth Circuit’s decision in United States v.
Kelly, 1976, 529 F.2d 1365. There, an employee of
a common carrier discovered that a ripped-open carton
of goods contained sexually explicit books and maga-
zines and called the FBI, which sent an agent who
examined several of the magazines and retained samples,
without obtaining a warrant. Although the Kelly court
said that the common carrier’s search was private,
it held that the Government’s subsequent acceptance
of the fruits constituted a seizure requiring a warrant,
“unless there are special circimstances which excuse
compliance with the . . . warrant requirement,” decided
that no exception to that requirement applied and
concluded that the warrantless “seizure” was “so un-
reasonable as to necessitate the operation of the exclu-
sionary rule.” Jd. at 1371.

The result in Kelly conflicts with the reasoning
implicit in a long line of private search decisions by
the Supreme Court and this circuit. In every such
case, introducing the fruits of a private search as evi-
dence was impossible unless the private party had at
some point surrendered the articles to the Government.
Yet neither we nor the Supreme Court have ever held
that government acceptance of those articles constitutes
a seizure requiring compliance with the warrant require-
ment, even in cases where no exception to that require-
ment would have covered the Government’s action.
See, e.g., Burdeau v. McDowell, 256 U.S. 465, 41
S.Ct. 574, 65 L.Ed. 1048 (1921); United States v.
Lamar, 5 Cir., 1977, 545 F.2d 488: United States
v. Blanton, 5 Cir., 1973, 479 F.2d 327: Barnes v.
United States, 5 Cir., 1967, 373 F.2d 517. Thus,
we decline to accept the Kelly court’s analysis.

a

stiles

In United States v. Sherwin, 9 Cir., 1976, 539
F.2d 1, the Ninth Circuit, sitting en banc, also rejected
the Kelly rationale. Sherwin also involved a common
carrier employee who examined the contents of damaged
packages, discovered sexually explicit books and called
the FBI, which sent agents who removed two books
from the shipment, without a warrant. Citing Kelly,
the Sherwin defendants argued on appeal that “a seizure
to which the fourth amendment is applicable occurred

. when the F.B.I. agents obtained the two books”
from the common carrier, id. at 7, but the Ninth
Circuit did “not regard the government’s acceptance
of materials obtained in a private search to be a
seizure” and concluded that “the fourth amendment
[is] not implicated when articles discovered in a pri-
vate search [are] voluntarily turned over to the govern-
ment.” Jd. We agree with the Ninth Circuit’s reasoning.
Under the circumstances, we hold that the FBI’s accept-
ance of the “David’s Boys” films from the L’Eggs
employees was not a seizure within the meaning of
the fourth amendment.

C. Viewing of the Films

Appellants Sanders and Walter further assert, basing
their argument on another Eighth Circuit case, United
States v. Haes, 1977, 551 F.2d 767, that the Govern-
ment conducted an additional unconstitutional search
by viewing the films on a movie projector without
obtaining a warrant. In Haes, the employee of a com-
mon carrier, seeking to identify the consignee of a
shipment, opened a package, discovered sexually explicit
films and contacted the FBI, which sent two agents
with a movie projector to the common carrier’s office,
where the films were screened without first obtaining
a warrant. Declaring that “the inquiry must be whether

the government” thereby undertook “any new or dif-
ferent searches,” the Eighth Circuit said that the Gov-
ernment’s viewing of the films “changed the nature
of the search,” because the private search had involved
no such screening, and held that the search was illegal,

since no exception to the warrant requirement applied.
Id. at 773-74.

Unlike Haes, however, where the private party “had
not viewed the films and had not attempted to make
a decision as to whether or not they were obscene,”
id. at 771, the L’Eggs employees were able to make
“a determination of possible obscenity prior to turning
the films over to the FBI,” id. at 772, by examining
the individual boxes containing the films. In this case,
the legend “David’s Boys” and a cartoon of two nude
males kissing and embracing appeared on one side
of each film box; the other side carried the title of
the individual film and a detailed description, in lan-
guage of the utmost explicitness, of the bizarre homo-
sexual acts depicted in the movie.® Under these circum-

“In announcing its holding on this issue, the Haes majority
emphasized the factual circumstances and noted that “[w]e
would feel otherwise if the private search had included any
sort of viewing of the films and a determination of possible
obscenity prior to turning the films over to the F.B.I.” 551 F.2d
at 771-72. Under the factual circumstances here, however,
the L’Eggs employees did not need actually to screen the
films to make that determination. The Eighth Circuit stressed
that Haes “was not the case” where “the private employee
had tangible evidence upon which to believe that the material
was being illegally transported in interstate commerce,” id.
at 772 n.1, but here, in contrast, the individual film boxes
amply supported the belief of the L’Eggs employees that such
illegal transportation had occurred.

‘The indictment listed five of the 25 “David’s Boys” titles
included in the shipment. The individual boxes containing
“Look at the Birdie” said that

Corbett really gets turned on when Rich comes over
for a photo session. In the a—close-ups you won’t believe!

— a

stances, since the L’Eggs employees so fully ascertained
the nature of the films before contacting the authorities,
we find that the FBI’s subsequent viewing of the movies
on a projector did not “change the nature of the
search” and was not an additional search subject to
the werrant requirement.° We have held that the re-

The highlight of the movie happens when Corbett mastur-
bates and—on Rich’s face! This is a flick you will not
forget.

“The Clean Up (3 white)” boxes read that

Lenny and Eric turn each other on and when you
see these good looking studs you'll know why!!! The ac-
tion gets heavy and then Les enters the picture.—galore
and Les cleans it up like you’ve never seen. Great close-ups!

The “Black Rape” (1 blk. 1 wht.) boxes stated that

Big Black Lance as 11”—but it doesn’t take long
before the small slender Larry is taking it all right up
the . . .! Good tongue action and a surprise that you
won’t believe. You will love the close-up action.

The boxes containing ““The Massage” explained that

Angelo the masseur gets turned on as he gives Tommy
a rubdown. Angelo’s expert tongue & hands soon have
Tommy’s . . . hard & excited. But he wants it the
Greek way and Angie complies. Then he . . . beautiful
on Tommy’s face! This is one of the best close-ups of
french love you will ever see!!

Finally, the “Loving Hands” boxes said that

Murray and Carl are well into their love session when
Ben enters the room. He will show you his loving hands
as he shoves them with his arms .. . (just short of

seur!!
(Certain particularly salacious words have been deleted by
the writer of this opinion as indicated. )

®*We note as well the question posed by then Judge Webster
in his Haes dissent:
Can it be seriously argued that an agent receiving a
suspected book or magazine from a freight carrier employee
could not reasonably open the publication and peruse
its pages to determine whether its contents offended the
law? Would a government agent who used a magnifying
glass or other mechanical aid to identify an object be
vulnerable to a claim of an unreasonable search inde-

(This footnote is continued on next page)

es

opening and reinspection of a bag by government au-
thorities following a private search does not constitute a
separate, independent search requiring a warrant. United
States v. McDaniel, 5 Cir., 1978, 574 F.2d 1224,
1226-27; United States v. Blanton, 5 Cir., 1973, 479
F.2d 327, 328. These decisions support our conclusion
on this issue, for in our view, “much less than reopen-
ing and reinspection of the box and its contents was
the activity of the FBI” here.’ United States v. Pryba,
1974, 163 U.S. App.D.C. 389, 399, 502 F.2d 391,
401.° See also United States v. Ford, 10 Cir., 1975,
525 F.2d 1308, 1312.° [See next page for fn. 9.]

pendent of the lawful private search which produced the
object? I think clearly not.

The film in this case was not a means of concealing
something else. In looking at the film through a projector,
the agents did no more than view the motion pictures
in the manner in which they were intended to be
viewed. 551 F.2d at 772-73.

"The Supreme Court’s decision in United States v. Chadwick,
433 US. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) does
not affect the outcome of this case. In Chadwick, the federal
agents gained exclusive custody of property still to be searched,
whereas here, the FBI took control of property that had
already been searched by a private party and did not conduct
any additional search of its own requiring a warrant. (See
also United States v. Johnson, 5 Cir., 1979, 588 F.2d 147.

*In Pryba, a nervous shipper, reluctant to disclose the
contents of a box, aroused the suspicions of an air freight
clerk in San Francisco. The clerk’s supervisor opened the
box and found “unpackaged reels of 8-millimeter color movie
film bearing titles unsubtly suggesting sex.” The supervisor
held two films up to the light and saw both hetero- and
homosexual nude couples “engaging in sexual acts.” He called
the FBI, which sent an agent with a movie projector to
the freight carrier’s office. After watching two more movies,
with the FBI agent still present the supervisor repackaged
the films and replaced the boxes in transit to Washington.
163 U.S.App.D.C. at 393, 502 F.2d at 395. Judge Spottswood
Robinson first concluded that the activities of the clerk and
his employer before the FBI brought the movie projector
constituted a private search and then declared that “we are
unable to perceive in the subsequent events any new or different

a:

Ill. Walter's Scienter

Appellant Walter contends that there was insufficient
evidence to sustain his conviction, because the Govern-
ment failed to establish a “close nexus” between him
and “a specific shipment of proved obscene matter”
and because there was no evidence as to scienter.
This assertion is meritless, as there was ample evidence
to support the jury’s finding that Walter knowingly
used a common carrier to ship obscene materials inter-
state, knowingly transported obscene matter interstate
for the purpose of sale or distribution and knew the
obscene nature of the films shipped interstate.

search after the F.B.I. agent arrived. There is respectable author-
ity holding that not even a reopening and reinspection of a
package by federal officers, after the initial opening and inspec-
tion by airline personnel entirely on their own, constitutes
a separate or additional search subject to Fourth Amendment
requirements. We need not venture nearly so far, for much
less than reopening and reinspection of the box and its con-
tents was the activity of the FBI in the instant case.”
Id. 163 U.S.App.D.C. at 399, at 401.

"In Ford, as in Pryba, a nervous shipper, at first unwilling
to identify the contents of a package, led an air freight
supervisor to unwrap the box. He discovered “about eight
prophylactics, six or seven inches long, containing a powdered
substance,” and called the local police. When the officers
arrived, they conducted an “on-the-spot field test” which “showed
that the substance was heroin.” 525 F.2d 1308. Rejecting
the assertion that the agents thereby conducted an illegal,
warrantless search, the Tenth Circuit said that the “government
agents appeared only after the suspicion of the pons presence
of contraband was confirmed by discovery of the prophylactics.
At this int, it was the province and indeed the duty
of the officers to further investigate the open box, which
they did without any invasion of protected rights of privacy,
to determine whether the suspicious substance in plain view
was in fact contraband ... . In these circumstances, we
are unable to perceive any new or different search after
the government agents arrived.” /d. at 1312. Similarly, the
FBI agents here, in viewing the films on a projector, were
attempting to confirm or dispel the suspicion, first developed
by the L’Eggs employees, that the films had been transported
illegally.

¥U2Y Oe, ..%, Po? tone

pak Sa

According to the testimony at trial, Walter and Sand-
ers jointly operated an extensive network of adult cine-
mas, bookstores and distribution warehouses, which
included appellants TWA and Gulf Coast News. Ernest
Golden, who had served as accountant and bookkeeper
for these various enterprises, testified that he received
instructions from both Walter and Sanders when keep-
ing accounts and preparing tax returns for a number
of corporations, including TWA and Gulf Coast News.
William Boshell, who succeeded Golden as accountant,
testified that Walter and Sanders both supplied him
with the business records of the various corporations.
He said that Walter, Sanders and all the corporations
had their offices at TWA and added that he was
paid with a TWA check for services rendered to the
other businesses.

John Catoe, an employee of Walter and Sanders,
related at trial that both men told him in 1973 that
they were planning a new corporation to distribute
sexually explicit materials and that Sanders later stated
that this corporation was TWA. According to Catoe,
he and all other TWA employees received work instruc-
tions from both Walter and Sanders. Catoe also said
that when the two men sent him to Florida to manage
a new bookstore in June 1975, they explained that
Gulf Coast News had been established to supply their
Florida operations. In addition, Catoe stated that Walter
gave him expense money and ordered him to follow
the directions of Richard Larson, the manager of Gulf
Coast News, whom Catoe had met at TWA when
Larson was being trained. Ronald Bowman, the Gulf
Coast News employee who delivered the “David’s Boys”
films to Greyhound’s St. Petersburg terminal, testified
that on one visit to the Gulf Coast News warehouse

=)

Sanders was introduced as the man “[y]Jou will be
working for” and that on another occasion Walter
was introduced as Sanders’ partner. Bowman also re-
called that Richard Larson described the two as partners
and identified as theirs the desks in the back of the
warehouse. Finally, Carol Maxey, Sanders’ former girl
friend, testified that Sanders told her that he and Walter
jointly owned a number of businesses, including Gulf
Coast News.

Given the foregoing testimony describing Walter’s
central role in the management of TWA, Gulf Coast
News and other companies involved in the distribution
and sale of hardcore pornography, we do not believe
that “the jury must necessarily have had a reasonable
doubt” that he possessed the requisite scienter, United
States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825,
cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d
58 (1971). Accordingly, we conclude that there was
sufficient evidence to support Walter’s conviction.

II. The District Court’s Instructions on Contemporary
Community Standards

Finally, appellants challenge the district court’s jury
instructions regarding the community standards element
of the definition of obscenity. They contend that Pinkus
v. United States, 436 U.S. 293, 98 S.Ct. 1808, 56
L.Ed.2d 293 (1978) and our subsequent decision in
United States v. Bush, supra, required the trial judge
expressly to charge the jury not to consider children
in determining the contemporary standards of “the
average person of the community as a whole.” We
reject appellants’ expansive reading of Pinkus and Bush
and find no error in the district court’s instructions.

=

In Pinkus, the trial judge had charged the jury
that, in ascertaining community standards, “‘you are
to consider the community as a whole, young and
old, educated and uneducated, the religious and the
irreligious, men, women and children, from all walks
of life’.” Pinkus v. United States, supra, 436 U.S.
at 296, 98 S.Ct. at 1811 (emphasis added). The
Supreme Court elected “to take this occasion to make
clear that children are not to be included for these
purposes as part of the ‘community’ as that term relates”
to the definition of obscenity and therefore held that
“it was error to instruct the jury that . . . [children]
were a part of the relevant community.” Jd. at 1812.
Similarly, in Bush the district court had told the jury
that “you are to consider the community as a whole,
young and old, educated and uneducated, religious
and the irreligious.” (emphasis added). In holding that
this charge constituted reversible error, we reasoned
that inclusion of “[t]he phrase ‘young and old’. . .
provides a jury ample freedom to consider children,
and thus does not completely avoid the danger, empha-
sized in Pinkus, that ‘the adult population [will be
reduced] to reading only what is fit for children.”
(citation omitted) 582 F.2d at 1021-22.

Here, however, unlike the instructions in Pinkus and
Bush, the trial judge’s charge did not prescribe jury
consideration of “children” or “young people” in de-
termining community standards. The district court told
the jurors to judge the obscenity of the films by whether
their “predominant appeal . . . viewed in [their] en-
tirety, is to the prurient interest of the average person
of the community as a whole, or the prurient interest
of a deviant sexual group, as the case might be, and
is so patently offensive that it is utterly without re-

= =

deeming social value.” (emphasis added). The judge
further explained that “[w]hether the predominant
theme or purpose of the material is an appeal to
the prurient interest of the ‘average person of the com-
munity as a whole’ is a judgment which must be
made in light of contemporary standards as would
be applied by the average person with an average
and normal attitude toward, and an average interest
in, sex.” (emphasis added) This instruction adequately
directed jury consideration to the contemporary stand-
ards of adults and thereby avoided the danger empha-
sized in Pinkus and Bush.

We have carefully examined appellants’ remaining
assertions” and conclude that they are meritless.
Accordingly, we affirm the judgments of conviction
as to all appellants.

AFFIRMED.

Appellants also contend, individually or in unison, that
by accepting and holding the whole shipment of films the
rmment engaged in prior restraint in violation of the
first amendment, that the trial judge should have granted
a change in venue, that he erred in refusing to admit comparison
evidence and that the district court should have compelled
the prosecution to present expert witnesses. In addition, they
assert numerous errors in the trial judge’s other rulings on
pretrial and trial motions and in his instructions to the jury
and argue that the voir dire conducted by the court was
insufficient. Finally, Walter urges that the prosecution was
guilty of prejudicial misconduct, that juror misconduct also
rejudiced appellants, that the district court erred in denying
his motion for severance and that the films were not obscene.

— =

WISDOM, Circuit Judge, dissenting:

I respectfully dissent. Today the Court holds that
the government may take possession of 12 cartons
containing 871 films, view the films two months later,
retain them for yet another two months—without ob-
taining a warrant at any point—if the films are the
fruit of a private search. The majority reaches the
conclusion that the FBI’s acquisition of the films in
this case falls short of a “seizure” without considering
the first amendment interest at stake when expressive
matter is taken out of circulation by the government.
“The Fourth Amendment * * * must not be read
in a vacuum”. Roaden v. Kentucky, 1973, 413 USS.
496, 93 S.Ct. 2796, 37 L.Ed.2d 757. In my view,
the approach of the Eighth Circuit Court of Appeals
in United States v. Kelly, 1976, 529 F.2d 1365, repre-
sents the proper accommodation of the first and fourth
amendments. I would reverse the defendants’ convic-
tions on the ground that the films were seized in
violation of the fourth amendment and, therefore, were
illegally admitted into evidence.

I.

The majority presents the facts accurately but not
completely. A longer look at the events that occurred
once the employees of L’Eggs Products, Inc. notified
the FBI of the receipt of the shipment of films leads
me to the conclusion that the defendants retained a
constitutionally protectible interest in the films that
was impermissibly intruded upon by the government.

On September 26, 1977, Michael Horton, area man-
ager for L’Eggs, pried upon one of twelve packages,
which were so unusually securely wrapped and rein-
forced that they did not look “normal” to him. He

—

discovered that the carton contained films boxes with
various sexual scenarios described on the covers. Horton
passed on this information to his branch manager,
William Fox. Fox then went to the Greyhound terminus,
informed the Greyhound employee in charge that the
boxes did not belong to L’Eggs, but took them with
him anyway, without, however, paying the collect
charges. Later, Fox informed FBI agent Mandyk of
the incident. Mandyk told Fox to put the cartons
aside until he arrived. He also asked the L’Eggs em-
ployees to obtain the name of anyone who called
to inquire about the packages.

Meanwhile, the defendants made several attempts
to find their shipment. One of the defendants called
Greyhound to report that the packages were missing.
He put a tracer on the shipment, leaving his name
and telephone number with Greyhound. During the
next few days several of the defendants visited the
Greyhound station. Although the assistant terminal
manager knew that the packages had been taken to
the L’Eggs office, on the instructions of the FBI, he
did not provide the defendants with this information.
Instead, he told the FBI about the inquirers. The
defendants also called the L’Eggs office. They, too,
denied that they had the shipment.

Five days after Fox called the FBI, two agents
arrived at the L’Eggs office and took possession of
the packages and their entire contents. Two months
later Agent Mandyk screened each of the 871 films
on an office projector. There were twenty-five title
films; the remaining 846 films were copies. Another
two months elapsed before the FBI turned the films
over to the United States Attorney’s office. Over a year

Ee cae ee ON Re ST TT ee ee Le a

a

later the indictments were returned. Of the twenty-
five title films, the government charged that five were
obscene.

II.

The major teaching of the Supreme Court’s decisions
in the obscenity area is that some form of judicial
procedure “ ‘designed to focus searchingly on the ques-
tion of obscenity’” must precede governmental inter-
ference with material arguably within the protection
of the first amendment. See Heller v. New York, 1973,
413 US. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745; A
Quantity of Books v. Kansas, 1964, 378 U.S. 205, 84
S.Ct. 1723, 12 L.Ed.2d 809. Because the FBI did
not apply to a magistrate for a warrant at any point,
the only judicial determination of obscenity was made
at the trial on October 21, 1977—over two years
after the 871 films were taken out of circulation by
the government. Yet, the majority relegates to a footnote
the defendants’ contention that there was an illegal
prior restraint. See note 10 of the majority opinion.

I must assume from the majority’s dismissal, without
discussion, of the issue of prior restraint that it agrees
with the government that there is no first amendment
interest at stake in this case. Before this Court, the
government argued that the films were not entitled
to the protection of the first amendment because they
were furtively distributed. When taken, the films were
neither being sold nor exhibited to the general public;
hence, the government reasons, the public’s first amend-
ment right of access to nonobscene matter was not
infringed. To support its contention that films enjoy
no special constitutional status unless they are available
to the general public, the government relies on language
in a decision of the Second Circuit Court of Appeals.

—

“This was strictly an underground operation in hard
core pornography with clandestine storage facilities not
intended to be available to the public . . . . The
‘setting’ then is hardly such as to presumptively invoke
first amendment protection.” United States v. Cangiano,
2 Cir. 1974, 491 F.2d 906, 913, cert. denied, 419
U.S. 904, 95 S.Ct. 188, 42 L.Ed.2d 149.

It is, of course, true that the procedural safeguards
required by the first amendment vary with “the nature
of the materials seized and the setting in which they
are taken”. Roaden v. Kentucky, 1973, 413 U.S. 496,
503, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757. A prior
adversary hearing must be held before a large quantity
of expressive material is seized by the government
for the purpose of destruction. See A Quantity of
Books v. Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723,
12 L.Ed.2d 809; Marcus v. Search Warrant of Prop-
erty, 1961, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d
1127; Lee Art Theatre v. Virginia, 1968, 392 USS.
636, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (per
curiam). “[S|eizing films to destroy them or to block
their distribution or exhibition is a very different matter
from seizing a single copy of a film for the bona
fide purpose of preserving it as evidence in a criminal
proceeding.” Heller v. New York, 1973, 413 U.S. 483,
492, 93 S.Ct. 2789, 2794, 37 L.Ed.2d 745. Such
a seizure is permissible if a neutral magistrate issuing
the warrant determines that there is probable cause
to believe that the film is obscene and an adversary
hearing is available promptly after the seizure.

When films are not subject to absolute suppression,
in the sense of destruction, and the public interest
in free circulation of the films is attenuated, less strin-

gent procedural limitations on governmental action may
be justified. This does not mean, however, that films
furtively distributed to a small cadre of customers lose
all constitutional protection and may be treated by
the government as if they were contraband or ordinary
instruments of a crime. The protection of the first
amendment cannot turn solely on the size of the audi-
ence that expressive matter will reach. History teaches
that the first amendment is concerned not only with
the public’s right of access but also with the right
of unpopular and small minorities to express their views.
Nor should first amendment protection hinge on the
method of dissemination, for unpopular minority views
are most likely to be disseminated in a furtive and
clandestine fashion. See United States v. Alexander,
8 Cir. 1970, 428 F.2d 1169, 1175; Note, The Right
to an Adversary Hearing on the Issue of Obscenity
Prior to the Seizure of Furtively Distributed Films,
69 Mich.L.Rev. 913, 926-40 (1971).

Indeed, the question before the Second Circuit Court
of Appeals in Cangiano was not whether the films
were presumptively under the protection of the first
amendment. The FBI obtained a warrant before seizing
the material and an adversary hearing was available
upon request by the defendant. The Court merely held
that the “setting” was not such as to invoke the require-
ments of a prior adversary hearing before seizure. I
do not know any cases, certainly not in this Circuit,
holding that the taking of furtively distributed films
raises no first amendment concerns at all. Such a propo-
sition would be startling in light of the Supreme Court’s
decision in Heller v. New York, 1973, 413 USS. 483,
93 S.Ct. 2789, 37 L.Ed.2d 745. There, a single copy
of a film was seized. Because other copies were available

for screening to the public, there was no restriction
on the public’s right of access. Yet, the Court held
that the copy could be seized as evidence only if
the government observed strict procedural safeguards.’
“The necessity for a prior judicial determination of
probable cause will protect against gross abuses, while
the availability of a prompt judicial determination in
an adversary proceeding following the seizure assures
that difficult marginal cases will be considered in light
of First Amendment guarantees”. 413 U.S. at 493,
93 S.Ct. at 2795.

I have elaborated on decisions in the area of obscen-
ity and prior restraints to demonstrate that the defend-
ants had a legitimate first amendment interest in the
films at the time they were taken by the FBI. I do
not decide whether the restraint imposed in this case
was so extensive that an adversary hearing should have
been held before the films were taken. It is unnecessary
to decide that question because the government did
not observe the minimum procedural safeguards de-
manded by the Supreme Court in Heller. I point out,
however, that unlike Heller the amount of material
taken by the FBI in this case must be termed “massive”.
The retention of 846 copies far exceeds the require-
ments of officers seeking to pursue criminal charges.
Moreover, we do not know whether the films were

1The first articulation of the view that furtively distributed
films are entitled to no first amendment protection was in
a district court opinion, United States v. Pryba, D.D.C. 1970,
312 F.Supp. 466. There, too, a warrant was obtained before
seizure of the films. The decision of the district court was
upheld by the District of Columbia Court of Appeals on
the alternative theory that the requirements of Heller were
satisfied. United States v. Pryba, 1974, 163 U.S.App.D.C.
389, 412-13, 502 F.2d 391, 404-05.

ae ee

earmarked for storage in a warehouse or whether they
were on the threshold of dissemination. One cannot
assume, therefore, that the FBI’s actions did not block
the orderly distribution of the films. And in that circum-
stance, the Supreme Court has implied that the require-
ments of A Quantity of Books must be met. Heller
v. New York, 1973, 413 U.S. at 492, 93 S.Ct. 2789.

iil.

Given the special constitutional character of the items
taken by the FBI, I see two mutually supporting reasons
that compel application of the exclusionary remedy
in this case.

In the first place, the first amendment is an independ-
ent source of restrictions upon the power of the police
to take expressive material. For example, because of
first amendment concerns, a film cannot be seized
as an incident to a lawful arrest. Roaden v. Kentucky,
1973, 413 U.S. 497, 93 S.Ct. 2796. This is true
even though the fourth amendment is generally under-
Stood to permit the seizure of items during a lawful
arrest. Chimel v. California, 1969, 395 U.S. 752, 89
S.Ct. 2034, 23 L.Ed.2d 685. As the Court explained
in Roaden, the seizure of a copy of a film “by a
police officer, without the authority of a constitutionally
sufficient warrant, is plainly a form of prior restraint”
.. . 413 US. at 504, 93 S.Ct. at 2801. “The seizure
proceeded solely on the police officer’s conclusions that
the film was obscene; there was no warrant. Nothing
prior to seizure afforded a magistrate an opportunity
to ‘focus searchingly on the question of obscenity.’ ”
413 U.S. at 506, 93 S.Ct. at 2802. Thus, to supply
the necessary judicial determination of obscenity, the

_

Supreme Court harnessed the fourth amendment pro-
cedural guarantee of a neutral magistrate.”

Functionally, the government’s acceptance of the
films in this case resembles a “seizure” resulting in
a prior restraint. It is a nonjudicially imposed suppres-
sion of expressive matter. Like a seizure “proceed[ing]
solely on the police officer’s conclusion”, the acceptance
and retention of the films wholly frustrated the exercise
of first amendment rights without any searching inquiry
by a magistrate into the merits of the first amendment
claim. It is imperative, therefore, to view the acquisition .
of these films by the FBI as a “seizure” subject to
the procedural guarantees of the fourth amendment.®

*The Supreme Court has also held that the first amendment
imposes its own, more stringent, limitations on obtaining and
executing a search warrant. A judicial warrant for the seizure
of a film may not be issued “solely upon the conclusory
assertions of the police officer without any inquiry by the
justice of the peace into the factual basis for the officer’s
conclusions.” Lee Art Theatre, Inc. v. Virginia, 1968, 392
U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (per
curiam); Marcus v. Search Warrant of Property, 1961, 367
U.S. 717, 731-32, 81 S.Ct. 1708, 6 L.Ed.2d 1127. Furthermore,
where books are seized, a heightened degree of specificity
in a search warrant’s description of “things to be seized”
is required. Stanford v. Texas, 1965, 379 U.S. 476, 85 S.Ct.
506, 13 L.Ed.2d 431. “But where the special problems associated
with the First Amendment are not involved . . . is a more
‘reasonable particularity’ . . . is permissible”. Berger v. New
York, 1967, 388 U.S. 41, 98, 87 S.Ct. 1873, 1904, 18
L.Ed.2d 1040. (Harlan, J., dissenting).

®Professor Monahan suggests a similar analysis with respect
to warrantless arrests. Viewing the first amendment as a source
of restrictions upon the power of the police to seize persons
as well as things, he argues that the police should be prohibited
from arresting those committing offenses in their presence
when the offenders are exhibitors or distributors of arguably
first amendment protected matter. “Functionally, an arrest re-
sembles a nonjudicially imposed injunction against certain con-
duct; . . . here, there is not evn the barest judicial inquiry
before the damage is done.” Monahan, First Amendment “Due
Process”, 83 Harv.L.Rev. 518, 538 (1970).

|

_ oe

The suppression of the films as evidence is also
justified under traditional fourth amendment doctrine.

I start from the premise that the defendants had
a constitutionally protectible privacy interest in the
packages before they were discovered by the employees
of L’Eggs. The district court held that shipping material
by means of a common carrier to a fictitious consignee
amounted to a relinquishment or abandonment of any
reasonable expectation of privacy. The majority agrees
with this conclusion. See slip opinion page 3892, page
stb of the majority opinion. The increased likelihood
that the parcel would be misdelivered cannot be equated
with an abandonment of all reasonable expectations
of privacy. Misdelivered packages are usually returned;
indeed, they are usually returned unopened. The careful
manner in which the films were wrapped in individually
sealed containers as well as the use of a fictitious
cover name for the addressee demonstrates, instead,
a strong desire to maintain the defendants’ interest
in privacy, to avoid the contents getting into the wrong
hands, and to continue ownership of the films or a
possessory interest in the films until their delivery into
the right hands.

The initial search of these films was by private
parties and was, therefore, outside the scope of the
fourth amendment. Burdeau v. McDowell, 1921, 256
U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. A search,
however, is merely the first step in an invasion of
privacy that ends with the introduction in court of
incriminating evidence. When the initial search is con-
ducted by private parties, the question remains whether
governmental conduct after that point amounts to an
independent invasion of the right of privacy controlled
by the standards of the fourth amendment. See generally

antiins,

Note,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0552%3A1. Public record. Not legal advice.