Petition — Gordon v. United States

if Supreme Court, U,

FILED

AUG 27 1979

MIGHABL ROBAK, JR,

In the |

Supreme Court of the United States.

OcrosBer TERM, 1979.

no. 79-3138

ELLIS GORDON,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

Of Counsel: Rosert F. Sytvia,

Fine & AMBROGNE, 133 Federal Street,

133 Federal Street, Boston, Massachusetts 02110.

Boston, Massachusetts 02110. (617) 482-0100

(617) 482-0100

Rosert L. CAPorALe,

Harris, SHELTON, DUNLAP 133 Federal Street,

& Coss, Boston, Massachusetts 02110.

One Commerce Square, (617) 482-0100

Suite 1300,

Memphis, Tennessee 38103.

(901) 525-1455

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Statutory provisions involved

Statement of the case

1. Summary of proceedings below

2. Statement of facts

Reasons for granting the writ

1. The District Court’s retroactive application

of the test for obscenity which was the law at

the time of the allegedly unlawful conduct does

not cure the error arising from the court’s earli-

er rulings which required petitioner to prepare

for and proceed to trial under the wrong test for

obscenity 8

2. Venue in the Western District of Tennessee is

improper since neither the agreement nor any

overt act committed by a conspirator occurred

in the district of trial 10

3. The District Court’s refusal to consider evi-

dence of standards of relevant communities out-

side of the Western District of Tennessee was

ooaTta4aaeans NY =

erroneous 1]

Conclusion 13

Appendix follows page 13

Exhibit A: Opinion of the United States Court of

Appeals for the Sixth Circuit la

Exhibit B: Judgment of the United States Court

of Appeals for the Sixth Circuit 19a

ii TABLE OF CONTENTS.

Exhibit C: Opinion of the United States District

Court for the Western District of Tennessee 2la

Table of Authorities Cited.

CASES.

Garrity v. New Jersey, 385 U.S. 493 (1967) 9

Hamling v. United States, 418 U.S. 87 (1974) 12

Hyde v. United States, 225 U.S. 347 (1912) 10

Marks v. United States, 430 U.S. 188 (1977) 3,8

Memoirs v. Massachusetts, 383 U.S. 413 (1966) 3, 8,9

Miller v. California, 413 U.S. 15 (1973) 8,9, 12

Roth v. United States, 354 U.S. 476 (1957) 3, 8,9

United States v. Goodwin, 531 F. 2d 347 (6th Cir.

1976) 9

United States v. Lester, 363 F. 2d 68 (6th Cir. 1966),

cert. denied, 385 U.S. 1002 (1967) 10

United States v. Marks, 520 F. 2d 913 (6th Cir. 1975) 8

Webb v. Texas, 409 U.S. 95 (1972) 9

STATUTES.

18 U.S.C.

§ 371 2,3

§ 1462 2,4,5, 12

§ 3231 5.

28 U.S.C. § 1254(1) 2

TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.

Developments in the Law — Criminal Conspiracy, 72

Harv. L. Rev. 920 (1959)

iii

10

In the

Supreme Court of the United States.

OcrosBer TERM, 1979.

No.

ELLIS GORDON,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

Now comes the petitioner and respectfully petitions this

Court for a writ of certiorari to issue to the United States Court

of Appeals for the Sixth Circuit.

In support of this request, your petitioner says as follows:

Opinions Below.

A copy of the opinion of the Court of Appeals for the Sixth

Circuit filed July 27, 1979, in the case of United States v. Jer-

2

ome Sandy and American International Picture Exchange of

Washington, D.C. (77-5367), Ellis Gordon (77-5368), Marvin

Zide and Allied Film Exchange, Inc. (77-5369), John O. Glaus

(77-5370), and Marvin Friedlander and Marvin Films (77-

5371), is annexed hereto as Exhibit A. A copy of the judgment

of the Court of Appeals for the Sixth Circuit filed July 27,

1979, in those same cases is annexed hereto as Exhibit B. The

Clerk’s Office of the Court of Appeals for the Sixth Circuit has

advised the petitioner that the opinion annexed hereto as Ex-

hibit A will be published, but this has not yet occurred. Ac-

cordingly, no citation is currently available. The opinion of

the District Court in this case is annexed hereto as Exhibit C.

This opinion is unreported and thus no citation is available.

Jurisdiction.

The jurisdiction of this Court is invoked under the provi-

sions of 28 U.S.C. § 1254(1) in that by judgment dated July 27,

1979 (Exhibit B annexed hereto), which was entered in court

on that same date, the United States Court of Appeals for the

Sixth Circuit affirmed the conviction of the petitioner and

others of conspiracy to distribute an obscene film in interstate

commerce in violation of 18 U.S.C. §§ 371 and 1462 (1976).

The petitioner, being aggrieved thereby, has a right to request

a writ of certiorari under 28 U.S.C. § 1254(1).

Questions Presented.

The petitioner respectfully suggests that the following ques-

tions are presented for review:

3

1. In an obscenity case which is tried without a jury, under

pre-trial rulings which improperly denied the defendant the

benefits of the Roth-Memoirs test which was the law at the

time of the allegedly unlawful conduct, can the trial judge

cure that error by a post-trial ruling designed to conform to

Marks v. United States, 430 U.S. 188 (1977)?

2. Is there proper venue for a conspiracy prosecution in the

Western District of Tennessee when there is no allegation in

the indictment or proof at trial that the agreement was made

there, and when it is found at trial that no conspirator has

committed any overt act in that district?

3. In the trial of an indictment alleging nationwide con-

spiracy to distribute an obscene motion picture film, may the

District Court refuse to admit evidence of the standards of the

community from which and to which an alleged conspirator,

who is a defendant, is alleged to have distributed the obscene

motion picture?

4. May the District Court in that case apply only the stand-

ards of the district of trial, to conduct of a defendant who has

engaged in no activities in the district?

Statutory Provisions Involved.

The case involves the following statutory provisions which

are set out hereafter:

UNITED States Cope, TITLE 18.

§ 371. Conspiracy to commit offense ur to defraud

United States.

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

4

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to ef-

fect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five

years, or both.

If, however, the offense, the commission of which is

the object of the conspiracy, is « misdemeanor only, the

punishment for such conspiracy shall not exceed the max-

imum punishment provided for such misdemeanor.

§ 1462. Importation or transportation of obscene mat-

ters.

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,

pamphlet, picture, motion-picture film, paper, letter,

writing, print, or other matter of indecent character;

or

(b) any obscene, lewd, lascivious or filthy phono-

graph recording, electrical transcription, or other arti-

cle or thing capable of producing sound; or

(c) any drug, medicine, article, or thing designed,

adapted, or intended for producing abortion, or for

any indecent or immoral use; or any written or printed

card, letter, circular, book, pamphlet, advertisement,

or notice of any kind giving information, directly or in-

directly, where, how, or of whom, or by what means

any of such mentioned articles, matters, or things may

be obtained or made; or

5

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 shail be fined not more than $10,000 or imprisoned

not more than ten years, or both, for each such offense

thereafter.

Statement of the Case.

1. SUMMARY OF PROCEEDINGS BELOw.

By indictment dated February 15, 1973, filed in the United

States District Court for the Western District of Tennessee, the

United States accused, inter alia, the petitioner, Ellis Gordon,

of conspiring to ship an obscene film known as “Schoolgirl” in

interstate commerce. The District Court had jurisdiction of

the offenses specified in said indictment under 18 U.S.C.

§ 3231. Certain defendants other than the petitioner were also

accused in the indictment of specific violations of 18 U.S.C.

§ 1462 involving the shipment of a print of “Schoolgirl” into

the State of Tennessee from other states. Prior to trial, and

after the District Court ruled on various pre-trial motions, cer-

tain of the defendants, including the petitioner, waived their

right to a jury trial and elected to proceed by what has since

been termed colloquially as a “truncated trial.”

The so-called truncated trial involved a stipulation as to the

anticipated testimony of one Saul Schiffrin and various

stipulations as to the activities of each of the defendants who

elected the truncated trial. These stipulations were placed in

evidence and certain additional evidence was taken during

6

two days of trial held on January 5 and 6, 1976. Subsequent-

ly, those defendants who did not elect the truncated trial, in-

cluding the defendants Tom Berman, Louis K. Scher, Arnold

Jordan, Gordon Craddock, Craddock Films, Inc., Art Theatre

Guild, Inc., and Sherpix, Inc., who were accused, with the

petitioner, of conspiracy in count I of the indictment, were

tried before a jury. On February 20, 1976, the jury returned

verdicts of “not guilty” against all defendants who elected a

jury trial on the conspiracy count, count I, and returned ver-

dicts of “guilty” against those defendants charged with the

specific criminal acts identified in counts II through VI of the

indictment.

By decision dated July 28, 1977, the petitioner and all of the

remaining defendants who elected the truncated trial, with

the exception of the defendants Richard L. Miller, Lou Wolff

and Harry Brandt Booking Office, Inc., were convicted of

conspiracy pursuant to count I of the indictment. The peti-

tioner claimed an appeal to the United States Court of Appeals

for the Sixth Circuit which on July 27, 1979, affirmed the con-

viction of petitioner. This petition for a writ of certiorari was

then filed.

2. STATEMENT OF Facts.

The petitioner, Ellis Gordon, is an individual who during

all times material to the indictment operated a film distribu-

tion business as a sole proprietor, which business was located

in Boston, Massachusetts. Gordon is classified as a subdistrib-

utor in that he customarily received a film for distribution

from a national distributor and then distributed the film to ex-

hibitors in his distribution area.

Sherpix, Inc. (hereafter Sherpix), is a national distributor of

motion picture films. Sherpix purchased all of the rights to a

7

motion picture entitled “Schoolgirl” from the producers of

that film in August, 1971. Sherpix then undertook to make

arrangements for the national distribution of that film. Sher-

pix had an existing arrangement with Gordon whereby Gor-

don distributed films for it in the Boston distribution area.

Gordon received “Schoolgirl” pursuant to that general

distribution arrangement which had been in effect since 1968.

The distribution arrangements with the petitioner and the

other subdistributor defendants were essentially the same.

Sherpix retained the sole responsibility for approving, prior to

final consummation, any exhibition of “Schoolgirl” in any

theater. Each of the subdistributors had an exclusive distribu-

tion right for “Schoolgirl” within their recognized distribution

areas subject to the right of Sherpix to distribute the film di-

rectly to the first theater which agreed to distribute “School-

girl” in the distribution area and subject further to the right of

Sherpix to handle distribution agreements directly with

theaters operated by Art Theatre Guild, Inc., which corpora-

tion was the parent of Sherpix. The role of the subdistributors

in the distribution of “Schoolgirl” was thus to obtain bookings

for the film to be exhibited in theaters within their distribution

area and to submit those bookings to Sherpix for approval. If

approval was granted, arrangements were made to ship the

film eit_.er directly from Sherpix, or through subdistributors,

to the ultimate exhibitor. The subdistributors were compen-

sated for their efforts in connection with the film “Schoolgirl”

by receiving a percentage of the amount received by Sherpix

from bookings made by each of them.

Gordon was not directly or indirectly involved in any ship-

ment of a print of “Schoolgirl” into or out of the State of Ten-

nessee. As a result of distribution arrangements made by Sher-

pix with persons other than Gordon, the film was shipped into

Tennessee and the instant indictment was obtained from the

grand jury.

8

Reasons for Granting the Writ.

The petitioner feels that the writ of certiorari should be

granted for the following reasons:

1. Tue Districr Courtr’s RETROACTIVE APPLICATION OF THE

Test FoR OBSCENITY WHICH WAS THE LAW AT THE TIME OF

THE ALLEGEDLY UNLAwFuL Conpucr bogs Not CURE THE

Error ARISING FROM THE Court’s EARLIER RULINGS WHICH

REQUIRED PETITIONER TO PREPARE FOR AND PROCEED TO TRIAL

UNDER THE WroNG TEST For OBSCENITY.

At the time of the nonjury trial the District Court judge in-

formed the parties in a series of pre-trial rulings that his deter-

mination of the issue of obscen‘y was to be governed by the

standard set forth in Miller v. California, 413 U.S. 15 (1973).

He made this determination even though the acts charged con-

stituted pre-Miller conduct because of the Sixth Circuit’s deci-

sion in the case of United States v. Marks, 520 F. 2d 913 (6th

Cir. 1975). This Court ultimately decided that defendants in-

dicted for pre-Miller conduct were entitled to the benefits of

the Miller test and were also entitled to the application of the

pre-existing Roth-Memoirs test,* Marks v. United States, 430

U.S. 188, 196-197 (1977). The Court of Appeals concedes that

prejudice could arise as a result of a mid-stream change in the

rules, but concludes that none has arisen in this particular case

(Pet. App. 6a). The petitioner respectfully suggests that prej-

udice has been established in the following areas:

(a) When a determination was made by the petitioner to

waive his right to a jury trial, he was faced with two possibil-

* Roth v. United States, 354 U.S. 476, 484-485 (1957); Memoirs v. Massa-

chusetts, 383 U.S. 413, 418 (1966).

9

ities: a jury trial under the Miller standards and a nonjury trial

under the Miller standards. Had the trial judge's pre-trial rul-

ings been correct, he would have been faced with an entirely

different choice, that being a jury which was to be instructed,

not only under the Miller standards, but also under the Roth-

Memoirs standards. This Court has alluded to the advantages

to a defendant of the Roth-Memoirs test (Miller, 413 U.S. at

£2), but this petitioner was denied the opportunity to consider

that advantage, thereby depriving him of his free choice to

make a knowing and voluntary waiver of jury trial. Waiver

cannot exist where the choice given is not real, and amounts to

a choice “between the rock and the whirlpool.” Garrity v.

New Jersey, 385 U.S. 493, 398 (1967).

Second, the petitioner was denied the right to present a

defense. Where a court ruling has the effective result of deny-

ing this right, there has been a denial of due process of law.

Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam). By vir-

tue of the court’s pre-trial ruling, it excluded from considera-

tion evidence which would have been admissible under the

Roth-Memoirs test, but which would be wholly inadmissible

under Miller.

The petitioner has thus been deprived of at least two fun-

damental rights by virtue of the trial court’s admittedly er-

roneous pre-trial ruling. The Court of Appeals, in violation of

its own precedent, has applied a “harmless error” test to these

fundamental rights. (See United States v. Goodwin, 531

F. 2d 347, 352 (6th Cir. 1976).) The petitioner should be

granted a new trial wherein he will have an opportunity to

present his case before a jury, which will be instructed under

the proper legal standard. :

10

2. VENUE IN THE WESTERN DIsTRICT OF TENNESSEE IS

IMPROPER SINCE NEITHER THE AGREEMENT Nor ANY

Overt Act ComMMITTED BY A CONSPIRATOR OccurrED

IN THE District oF TRIAL.

The theory of the prosecution in this case is not that an

agreement was reached in the Western District of Tennessee,

but rather that certain conspirators committed overt acts

there. If that were the case, venue would be proper under

Hyde v. United States, 225 U.S. 347, 359-360 (1912). The in-

dictment alleges an agreement which was not made in Tennes-

see and that overt acts were committed in the Western District

of Tennessee by Sherpix, Inc., Art Theatre Guild, Inc., Gor-

don Craddock, Craddock Films, Inc., and others. The Dis-

trict Court then found that Sherpix, Inc., Art Theatre Guild,

Inc., Gordon Craddock and Craddock Films, Inc., had com-

mitted overt acts within the Western District of Tennessee

(Pet. App. 29a-30a). These, then, are the venue-giving de-

fendants, and all of them were ultimately acquitted by a jury

of this conspiracy.

Conspiracy law, unlike the law in many other areas, con-

tains a principle of consistency in verdicts. See generally

Developments in the Law — Criminal Conspiracy, 72 Harv.

L. Rev. 920, 972-974 (1959). The rule in the Sixth Circuit on

this point is clear. When there has been an acquittal of other

members of an alleged conspiracy, the indictment must be

read as if those acquittals were incorporated therein. United

States v. Lester, 363 F. 2d 68, 72 (6th Cir. 1966), cert. denied,

385 U.S. 1002 (1967). The indictment in this case must thus

be read as if Sherpix, Inc., Art Theatre Guild, Inc., Gordon

Craddock and Craddock Films, Inc., were not members of the

conspiracy. So read, the trial judge’s findings of fact do not

support venue in the Western District of Tennessee because no

1]

person found to have committed an overt act in that district is

a member of the conspiracy.

The Court of Appeals endeavors to cure this difficulty by

contending that one Saul Schiffrin, an unindicted co-conspira-

tor, arranged for the transportation of the film into Memphis

(Pet. App. 12a), but this ignores the fact that, although the in-

dictment alleges that Schiffrin performed such an overt act,

the trial judge did not find that he did. The Court of Appeals

also contends that the acquittal of the venue-giving defendants

of conspiracy does not mean that they did not commit overt

acts in the district, since they were convicted of various viola-

tions of the obscenity laws as substantive offenses (Pet. App.

12a). The problem with this reasoning is that it ignores the

fact that for purposes of this indictment these individuals are

not members of the conspiracy. Thus, the commission of overt

acts by these defendants in the Western District of Tennessee is

immaterial. Since they were not conspirators, their overt acts

do not create venue.

Simply stated, the jury acquittal of the venue-giving defend-

ants requires a reversal of the petitioner's conviction because

there was no venue for the trial of this conspiracy, if it existed

at all, in the Western District of Tennessee.

3. THe Districr Court’s REFUSAL TO ConSIDER EVIDENCE

OF STANDARDS OF RELEVANT COMMUNITIES OUTSIDE OF THE

WESTERN District OF TENNESSEE WAS ERRONEOUS.

Gordon’s distribution area was Massachusetts, Connecticut,

Vermont and Maine. Prior to trial he sought permission to in-

troduce evidence as to the standards of these communities, but

the District Court ruled that such evidence would not be ad-

mitted, and that only the standards of the Western District of

Tennessee would be applicable. This ruling was reaffirmed

shortly before trial.

12

The prosecution in this case alleges a “national conspiracy.”

One of the significant aspects of Miller is its conclusion that

there is no single nationwide standard by which to judge

whether a particular item is obscene. This Court has said that

“a district court would . . . be at liberty to admit evidence of

standards existing in some place outside of this particular dis-

trict, if it felt such evidence would assist the jurors in the

resolution of the issues which they were to decide.” Hamling

v. United States, 418 U.S. 87, 106 (1974). In this case the Dis-

trict Court clearly should have admitted such evidence in the

case of Gordon. Since distributors from all parts of the coun-

try were caught in the web of this alleged nationwide conspir-

acy, the limitation of evidence to the standards of the Western

District of Tennessee makes the standards of that district a na-

tionwide standard of the type prohibited by Miller. While it

may be perfectly appropriate to exclude standards of other dis-

tricts when a defendant is charged with a substantive offense

of shipping obscene material into a judicial district in violation

of 18 U.S.C. § 1462, on the theory that the defendant is prop-

erly chargeable with knowledge of the standards of the district

into which he ships the materials, it is wholly inappropriate in

a nationwide conspiracy case, particularly as to those de-

fendants who had no dealings with the Western District of

Tennessee, such as Gordon. As to them, the standards of the

Western District of Tennessee become a prohibited national

standard, in that persons involved in the nationwide distribu-

tion of any film will have no choice but to treat the most

restrictive standards present in the United States as the stand-

ards governing their conduct with regard to that film. Miller

expressly sought to avoid this “lowest common denominator”

approach, but by refusing to admit evidence of this type, the

District Court has imposed just such a prohibited nationwide

standard.

13

Conclusion.

_ Based on the foregoing, your petitioner respectfully requests

that a writ of certiorari issue.

Respectfully submitted,

Of Counsel: ROBERT F. SYLVIA,

FINE & AMBROGNE, 133 Federal Street,

133 Federal Street, Boston, Massachusetts 02110.

Boston, Massachusetts 02110. (617) 482-0100

(617) 482-0100

ROBERT L. CAPORALE,

HARRIS, SHELTON, 133 Federal Street,

DUNLAP & COBB, Boston, Massachusetts 02110.

One Commerce Square, (617) 482-0100

Suite 1300,

Memphis, Tennessee 38103.

(901) 525-1455

14

la

Exhibit A.

Nos. 77-5367-8-9-70-7 |

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UntTep STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JEROME SANDY and AMERICAN INTER-

NATIONAL PicruREs EXCHANGE OF

APPEAL from the

Wasuincton, D.C. (77-5367), United States District

Etuis Gorpon (77-5368), + Court for the West-

Marvin Zive and ALLED Fim Ex-| ¢&™ District of Ten-

CHANGE, INc., (77-5369), —

Joun O. Giaus (77-5370) and

MARVIN FRIEDLANDER AND Marvin

Fits (77-5371),

Defendants-Appellants. |

Decided and Filed July 27, 1979.

Before: Encrx and Kerru, Circuit Judges and Pecx, Senior

Circuit Judge.

EncEL, Circuit Judge. Appellants were convicted in a non-

jury trial of conspiring to distribute an obscene film, “School

Girl”, in interstate commerce, in violation of 18 U.S.C. 8§ 371

and 1462 (1976). Their principal claim in this appeal is that

they were prejudiced because the case was tried under the

obscenity standards of Miller v. California, 413 U.S. 15 (1973),

2a

2 United States v. Sandy, et al. Nos. 77-5367, etc.

only to be decided later by the trial judge under pre-Miller

standards.

We hold upon the record before us that there was no prej-

udice which affected the substantial rights of the appellants

and, finding no other error in the trial, affirm the convictions.

The indictment, returned by a federal grand jury in Mem-

phis, Tennessee, on February 15, 1973, charged 25 individuals

and organizations with conspiring to distribute “School Girl”

in interstate commerce. The detailed allegations of the indict-

ment and the overt acts expressly incorporated in it described

activity which commenced with the production of the motion

picture by certain of the conspirators, the sale of the rights in

the movie to the defendant Sherpix for a total of $41,000,

and the subsequent distribution for public exhibition of the

film throughout the country by means of the various services

offered ty the remaining named defendants. The conspiracy

charge, which was embraced in count 1 of the indictment, was

fortified by five additional counts in which certain of the con-

spirators were charged with the substantive offenses of ship-

ping the film in interstate commerce by use of a common

carrier, contrary to 18 U.S.C. §§ 1462 and 2.

Of the 25 defendants charged in the conspiracy count, 15

waived jury and elected to be tried before the district judge.

Seven other defendants, including all who were tried on the

substantive charges, proceeded to trial by jury immediately

following the non-jury trial of the appellants involved here."

All of the defendants who insisted upon their right to jury

trial were acquitted on the conspiracy count but were found

guilty of the several substantive offenses charged against

1 As for the remaining three alleged conspirators, John O. Glaus

Agency was not tried, althou appellant John O. Glaus. individually,

was tried and convicted. Paul David Gerber a/k/a David Reberg, one

of the conspirators responsible for the production of “School Girl,”

apparently was not apprehended and brought to trial. A third de-

fendant, Beraasd Levy, was dismised by an order of nolle prosequi.

3a

Nos. 77-5367, etc. United States v. Sandy, et al. 3

them.? Conversely in the non-jury trial before District Judge

Robert M. McRae, Jr., three defendants were acquitted and the

remaining twelve were convicted, eight of whom have ap-

pealed here.

L

In the non-jury trial held January 5-6, 1976, District Judge

Robert M. McRae, obedient to our circuit’s decision in United

States v. Marks, 520 F. 2d 913 (6th Cir. 1975) (Marks I ),

considered that his determination of the issue of obscenity was

to be governed by the standards set forth in Miller v. Cali-

fornia, 413 U.S. 15 (1973), although all events alleged in the

indictment occurred before Miller was decided. However, after

the trial of the case but before filing his decision and entering

judgment, the district judge learned that the Supreme Court

had granted certiorari in Marks, supra, and accordingly de-

layed further proceedings in the case until the appeal was

decided. On March 1, 1977, the Supreme Court held that

persons indicted for conduct occurring before Miller were en-

titled to all of the benefits which Miller might confer, but were

also entitled to application of the pre-existing Roth-Memoirs®

test of obscenity, which primarily provided that materials

could not be found to be obscene unless they were “utterly

without redeeming social value.” Marks v. United States, 430

U.S. 188, 196-97 (1977) (Marks II). On July 28, 1977, ap-

proximately five months after the Supreme Court’s decision in

Marks II, Judge McRae filed his findings of fact and conclu-

sions of law. Applying both the Miller and Roth-Memoirs

tests,* he adjudged the film to be obscene and found the ap-

pellants guilty.

2 The trial court later ordered new trials because the jury had

been erroneously charged on the definition of obscenity.

3 Roth v. United States, 354 U.S. 476 (1957); Memoirs v. Massachu-

setts, 383 U.S. 413 (1966).

4 The appellants’ claim that the trial court in fact only applied the

Miller test is not correct.

4a

4 United States v. Sandy, et al. Nos. 77-5367, etc.

As noted in Hamling v. United States, 418 U.S. 87, 99 (1974),

the definition of obscenity announced in Roth was substantially

refined by the plurality opinion in Memoirs v. Massachusetts,

383 U.S. 413 (1966). To fall outside constitutional protection

under Memoirs, “it must be established that (a) the dominant

theme of the material taken as a whole appeals to a prurient

interest in sex; (b) the material is patently offensive because

it affronts contemporary community standards relating to the

description or representation of sexual matters; and (c) the

material is utterly without redeeming social value.” 383 U.S.

at 418.

Miller v. California, supra, revised the Roth-Memoirs test

determining obscenity in the following language:

(a) whether “the average person, applying contemporary

community standards” would find that the work, taken

as a whole, appeals to the prurient interest . . 3

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically defined by the

applicable state law; and

(c) whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific values.

Miller v. California, supra, 413 U.S. at 24. The standards an-

nounced in Miller were made applicable to federal obscenity

trials in United States v. 12 200-ft. Reels of Film, 413 U.S. 123,

129-30 & n. 7 (1973).

No appellant has disputed the trial judge’s factual descrip-

tion of the content of “School Girl”:

The school girl portrayed in the movie is a college

student who undertakes to research a sex subculture. In

order to do this she responds to certain classified ads in

the college underground newspaper. This leads to a

series of sexual episodes which include having sexual in-

tercourse with a husband under the wife’s direction and

5a

Nos. 77-5367, etc. United States v. Sandy, et al. 5

ultimate participation as a third party, mutual masturba-

tion pursuant to direction from a man over the telephone,

sexual intercourse oral and otherwise with a father and

son team, and a group sex orgy. In addition, there are

episodes in which complete actual and prolonged sexual

intercourse between the school girl and her boyfriend is

shown. There is a similar episode portrayed between

the school girl’s female roommate and the school girl’s

male professor who called at their apartment to inquire

about the welfare of the school girl. In addition the

school girl and her female roommate are shown in a

prolonged lesbian episode.

All episodes show close shots of the genitals of the

participants during the sexual encounters.§

No party has claimed that under either test the film is con-

stitutionally protected as a matter of law.‘ The issue, there-

fore, is whether any prejudice affecting the substantial rights

of the defendants occurred because the case was tried under

the Miller standards, but was finally decided under both

Miller and pre-Miller standards.

5U ress inquiry by the court at oral argument, all parties

expensed the entnion that it was not cto A to the ye that

the judges view the film. See United States v. arks, 585 F. 2d 164,

171 (6th Cir. 1978) (Marks III). We therefore accept the trial court’s

accoumt as accurate.

¢ It seems to be characteristic of this kind of case that it is suscep-

tible to many hypothetical dang — dangers that innocent and

a case-by-case basis, those dan turn out to be more theoretical

than meal, for rarely is it argued with any force that the material in

uuestion is as a matter of law not obscene, and that claim is not

made here. One reason for this, we suspect, is that where material

has any remote relation to the values protected by the obsceni

tests, a generally tolerant society tolerates it in all events. A seco

more important reason, we suspect, is that the commercial market-

ability of obscene materials depends in major part upon the Mg

absence of those qualities which lift that material into the area o

First Amendment protection.

6a

6 United States v. Sandy, et al. Nos. 77-5367, etc.

We conceive that prejudice to substantial rights could exist

by a midstream change in the rules such as occurred here.”

We are, however, unable realistically to conceive of any

prejudice upon this record.

Having lost below, all appellants indicate in this appeal

that they wish to have a new trial based upon pre-Miller

standards. There is, however, no complaint that the district

court erred in excluding any evidence proffered by the de-

fendants, although they now claim that the making of an offer

of proof would have been an expensive and futile gesture in

view of the court’s pretrial ruling that Roth-Memoirs would

not be applied. But see Rule 103(a)(2), Fed. R. Evid.

While there was some suggestion on appeal that certain of

the defendants might have wished, as a matter of afterthought,

to introduce further expert testimony on the obscenity question

and its application under pre-Miller standards, nothing con-

crete has been offered or even suggested which would indicate

how the defendants would have conducted themselves dif-

ferently, had it been known at the time of trial that pre-Miller

standards were still applicable.

More particularly, certain appellants, notably Gordon, com-

plain that the submission of the case on the Miller standards

denied them an opportunity to “present evidence or argue that

the film did not violate the Memoirs test, particularly the last

part, requiring that the material be ‘utterly without redeeming

social value’ for it to be found obscene.” The simple answer to

this, as we mentioned above, is that no offer was ever made,

although many months elapsed from the date of trial due to

the trial court’s decision to wait for further guidance from the

Supreme Court. More particularly, despite an interval of

7 Judge McRae, in fact, for this reason set aside the j conviction

of the co-defendants and ordered a new trial under’ pre-Miller

defendants tried to the jury and those who opted for trial to the

court. The jury had been charged only according to Miller standards,

while the judge in the bench trial expressly evaluated the film under

both Miller and Roth-Memoirs.

7a

Nos. 77-5367, etc. United States v. Sandy, et al. 7

nearly five months between the Supreme Court’s decision in

Marks and Judge McRae’s opinion, not one defendant sought

any right to re-argue the case under the old standards, or to

submit additional evidence or to make any offer of proof as

to what additional evidence he wished to submit, once the

standard had been clarified. We can only view this, therefore,

as an effort to obtain a second bite of the apple, and not as

any claim of serious prejudice to any right of fair trial.

A somewhat similar problem arose in Hamling v. United

States, supra, when it appeared that the instructions given by

the district court in the jury case made occasional ‘reference

to the community standards of the “nation as a whole,” thereby

delineating a wider geographical area than normally would

have been warranted by Miller:

In the unusual posture of this case, in which petitioners

agree that the challenged instruction was proper at the

time it was given by the District Court, but now seek to

claim the benefit of a change in the law which casts

doubt upon the correctness of portions of it, we hold that

reversal is required only where there is a probability that

the excision of the references to the “nation as a whole”

in the instruction dealing with community standards

would have materially affected the deliberations of the

jury. [citations omitted] Our examination of the record

convinces us that such a probability does not exist in this

case.

Hamling, supra, 418 U.S. at 108. Of course, the likelihood of

prejudice is even less in the instant case than in Hamling, since

Judge McRae, as trier of fact, properly recognized and applied

both the Miller and Roth-Memoirs tests in judging the obscene

nature of the film.

We are convinced that under the circumstances here, neither

the parties’ trial strategy, their decision to have waived a jury,

ner the trial judge’s consideration of the evidence, were ad-

versely affected by the fact that the case was tried upon the

8a

8 United States v. Sandy, et al. | Nos. 77-5367, etc.

understanding of the law prevailing in our circuit and decided

on a somewhat variant and later construction announced by

the Supreme Court. Had the record shown some meaningful

distinction which could have affected the result here and which

would render it unfair for the parties to be bound by the trial

court’s decision, we would not hesitate to reverse. Such is not

the state of the record here.

I.

Each appellant argues, in one form or another, that he

is entitled to acquittal as a matter of law because the evidence

was insufficient to connect him with one common enterprise

which would qualify as a criminal conspiracy. As indicated

earlier, the jury trial of the remaining defendants named in

the indictment followed the non-jury trial before Judge McRae

here and resulted in acquittal of the defendants therein of the

conspiracy charge, although they were found guilty on sub-

stantive counts of transporting obscene material in interstate

commerce by use of a common carrier, It is the claim of

appellants that the government alleged a “wheel” type of

conspiracy in which Art Theatre Guild and its subsidiary,

Sherpix, as the owner and original distributor of the movie,

were the hub, and in which the appellants, if anything, were

merely spokes of the wheel having no relationship one to the

other except through their common relationship with Sherpix

and Art Theatre Guild. Because Sherpix and Art Theatre

Guild were acquitted of the charge of conspiracy in the jury

trial, the defendants reason that they must likewise be

acquitted since it has been adjudicated through the acquittal,

they claim, that Sherpix and Art Theatre Guild were not

conspirators.

They place reliance upon a number of decisions which in

effect hold that where all other alleged co-conspirators are

acquitted of a conspiracy, the conviction of one person on

that charge cannot be upheld, since it takes at least two to

9a

Nos. 77-5367, etc. | United States v. Sandy, et al. 9

commit the offense. E.g., United States v. Williams, 503 F.

2d 50, 54 (6th Cir. 1974). See also United States v. Lester,

363 F. 2d 68, 72 (6th Cir. 1966), cert. denied, 385 U.S. 1002

(1967). However this may be, and there is indeed much

authority to the contrary commencing with Dunn v. United

States, 284 U.S. 390 (1932) (Holmes, J.), and proceeding

through Hamling v. United States, supra,’ our careful exam-

ination of the record here persuades us that in all events, the

essential link in the conspiracy was not missing here. Unin-

dicated but named co-conspirator Saul Shiffrin, Executive Vice

President of Sherpix and Art Theatre Guild, supplied that link

in ample measure and it was his testimony which connected

the defendants one to another and laid the cornerstone of

the successful prosecution of the conspiracy. The indictment

alleged and the proofs showed numerous overt acts undertaken

by Shiffrin, notably arranging to transport the film into and

out of the district of trial and contracting for the sub-

distribution of “School Girl” with the defendants.

The court, sitting as a trier of fact, specifically found that

a conspiracy existed between the appellants and Shiffrin.

Shiffrin’s testimony, which was introduced at trial through his

affidavit, amply supports that finding. United States v. Shipp,

359 F. 2d 185 (6th Cir.), cert. denied, 385 U.S. 903 (1966).

Likewise, it is immaterial that Shiffrin was not himself charged

in the indictment; he was named as an unindicted co-

conspirator and the evidence at trial connected him with the

conspiracy. Feldstein v. United States, 429 F. 2d 1092, 1095

(9th Cir.), cert. denied, 400 U.S. 920 (1970). See also

® “It has, of course, long been the rule that consistency in verdicts

or a of conviction is not required.” 418 U.S. at 101. See also

United States v. Rowan, 518 F. 2d 685, 689 (6th Cir.), cert. denied, 423

U.S. 949 (1975) (“{a] jury is free to render inconsistent verdicts or

to employ relevant evidence in convicting on one count that it may

seem to have rejected in acquitting on other counts.”); United States

v. Fleming, 504 F. 2d 1045, 1055 (7th Cir. 1974); Developments in the

Law — Criminal Conspiracy, 72 Harv. L. Rev. 920, 974 & n. 401 (1959).

10a

10 United States v. Sandy, et al. Nos. 77-5367, etc.

Developments in the Law - Criminal Conspiracy, 72 Harv. L.

Rev. 920, at 972-73 {1959).

It is a well-established general rule that inconsistent jury

verdicts are not fatal to a conviction, they being “one of the

consequences which we accept under our jury system,” Miller

v. California, 413 U.S. at 26 n. 9. See also Dunn, supra, 284

U.S. at 393-94, and Hamling, supra, 418 U.S. at 100-01. In

view of this authority we think that the rule in Williams and

like cases is necessarily confined to those circumstances in

which the allegations of the indictment and the proofs at

trial admit of no other conspiratorial agreement than that

existing between the one convicted defendant and other

conspirators, all of whom have been acquitted of the specific

charge. Developments, supra, 72 Harv. L. Rev. at 972-73, and

cases cited therein. This circumstance does not exist in the

instant case.

Allied with the claim of insufficiency of the evidence is the

claim of several of the defendants thet not one but several

conspiracies were shown because the proofs indicated only

individual, isolated agreements to acquire and display the

film, rather than the single, unified conspiracy, which appel-

lants claim is necessary to their joint trial and conviction.

Essentially the defendants rely upon Kotteakos v. United

States, 328 U.S. 750 (1946), and its justifiable concern that in

conspiracy cases the defendants have a right “not to be tried

en masse for the conglomeration of distinct and separate

offenses committed by others. ...” Id. at 775. See also United

States v. Mayes, 512 F. 2d 637, 642-43 (6th Cir.), cert. denied,

422 U.S. 1008 & 423 U.S. 840 (1975). If anything, the con-

spiracy here alleged and proved has a singular unity in its

confinement to the distribution in interstate commerce of but

one film. It is apparent that by narrowly describing the con-

spiracy, many of the legitimate apprehensions of injustice

reflected in Kotteakos were avoided. As the trial court noted

in its findings of fact:

lla

Nos. 77-5367, etc. | United States v. Sandy, et al. 11

Because there are a limited number of copies of the film,

it is understood and agreed by those members of the

distribution network that they will ship the copies to

other areas (interstate) when directed to do so by the

owner or distributor of the film. The proof reflects that

this was not only agreed to but was done by some of the

sub-distributors. . . .

Furthermore, the sub-distributors and the distributor were

financially interested in an efficient and systematic method

of making the copies available when and where needed.

The interdependence of the sub-distributors and their agree-

ment to act in concert with one another in the circulation of

the film provided the “rim of the wheel” and thus tied them

together in a single criminal undertaking. Kotteakos, supra,

328 U.S. at 755; Mayes, supra, 512 F. 2d at 642-43; United

States v. Vartelli, 407 F. 2d 735, 741-42 (7th Cir, 1969), appeal

after remand, 467 F. 2d 1032 (7th Cir. 1972), cert. denied,

410 U.S. 982, 990 (1973). It, therefore, appears to us from

the evidence here that one conspiracy was shown to have

existed, a conspiracy to participate in the interstate distribution

and showing, for profit, of “School Girl.”®

Ii.

Appellants also claim that the acquittal of Sherpix, Art

Theatre Guild, and sub-distributor Gordon Craddock and

Craddock Films, inter alia, in the earlier jury trial as a matter

of law deprived the Western District of Tennessee of venue

since “all allegations of overt acts committed in the Western

District of Tennessee are those of Sherpix, Inc., Art Theatre

Guild, Inc., Gordon Craddock and Craddock Films, Inc.” The

9 It might be that the defendants, or some of them, were equally

guilty of conspiring to distribute other obscene films and that conduct

was also a part of the “School Girl” conspiracy. That, however, need

not concern us here. Defendants could not be injured if the govern-

ment elected to confine itself to the narrower aspects of a single

conspiracy.

12a

12 United States v. Sandy, et al. = Nos. 77-5367, etc.

claim is simply without factual support in the record. The

indictment also alleged, inter alia, overt acts committed by

unindicted co-conspirator Shiffrin, and the evidence supported

those allegations. More fundamentally, however, we do not

view the acquittal of Sherpix, Art Theatre Guild, Craddock

and Craddock Films on the conspiracy charge as conclusive

evidence that, for the purposes here, they did not actually

commit the overt acts charged to them in the indictment.

See United States v. Samuel Dunkel & Co., 184 F. 2d 894, 898

(2d Cir. 1950), cert. denied, 340 U.S. 930 (1951). In fact,

all four were convicted on substantive counts which formed

the basis of the overt acts alleged to have been committed by

them in the conspiracy count.

We know of no rule which obliges a trier of fact to disregard

the evidence relating to a defendant who has been acquitted

of a particular crime in the trial of a co-defendant. As earlier

mentioned, the rule in Williams, supra, relied upon by defen-

dants, is not a rule of evidence but of sufficiency. Therefore,

where the sufficiency is fully shown by the participation of

unindicted co-conspirator Saul Shiffrin, that issue is at an end.

The proofs clearly show several overt acts occurring in the

Western District of Tennessee. The trial court specifically

found that “Sherpix and Art Theatre Guild, acting through its

authorized employees caused ‘School Girl’ to be shipped in

interstate commerce to Memphis, Tennessee (Western District

of Tennessee) on or about March 1, 1972.” Shiffrin’s testi-

mony indicates he personally arranged for the transportation

of the film into Memphis. On June 15, 1972, Sherpix caused

a print of “School Girl” to be shipped by common carrier from

Memphis to appellant Allied Film Exchange in Detroit, and

again on June 5, 1972, Gordon Craddock, at the direction of

Shiffrin, caused a print of the movie to be shipped by inter-

state commerce to Memphis and subsequently to Springdale,

Arkansas, from Memphis. Venue for the conspiracy count

was properly laid in the Western District of Tennessee. Hyde

lS — Ss

13a

Nos. 77-5367, etc. | United States v. Sandy, et al. 13

v. United States, 225 U.S. 347, 365-67 (1912); Rule 18, Fed. R.

Crim. P.

Closely allied to the foregoing argument is the claim that

the various defendants were unfairly tried in Memphis because

the allegedly puritanical local standards of that community

subjected them to judgment of guilt based upon standards

which might not exist in the several other areas of the country

where they had displayed or circulated the fim. We view

this claim as but another facet of the same venue argument.

Once the conspiracy to which they belonged was shown

to have extended to and operated in Memphis, the defendants

had no right to have the obscenity of the film tried according

to the community standards of other localities in which they

might conceive public attitudes to be more permissive. In

Art Theatre Guild, Inc. v. Parrish, 503 F. 2d 133 (6th Cir.

1974), cert. denied, 420 U.S. 995 (1975), wherein we ruled

on a motion for return of the same seized film, we observed:

The Supreme Court in Hamling v. United States, .. .

touches on this problem [prosecution of a nationwide

conspiracy case] and indicates how a district judge sitting

in one district can handle the “contemporary community

standard” requirement when faced with a federal prose-

cution and the need to consider its application in several

districts.

Id. at 137. Hamling indicates that even where a federal

obscenity offense is multistate in its scope, the community

standards of the locality of trial, not some “hypothetical and

unascertainable” nationwide standards, are to be applied:

A juror is entitled to draw on his own knowledge of

the views of the average person in the community or

vicinage from which he comes for making the required

determination, just as he is entitled to draw on his

knowledge of the propensities of a “reasonable” person

in other areas of the law.

l4a

14 United States v. Sandy, et al. Nos. 77-5367, etc.

The result of [Miller v. California and companion

cases], therefore, as a matter of constitutional law and

federal statutory construction, is to permit a juror sitting

in obscenity cases to draw on knowledge of the com-

munity or vicinage from which he comes in deciding

what conclusion “the average person, applying contem-

porary community standards” would reach in a given

case. Since this case was tried in the Southern District

of California, and presumably jurors from throughout

that judicial district were available to serve on the panel

which tried petitioners, it would be the standards of that

“community” upon which the jurors would draw.

418 US. at 104, 105-06.

While the appellants have not argued that the nationwide

scope of the conspiracy requires application of a national

standard in judging the film, they claim that the trial court

should have applied a multitude of local standards, depending

upon the distribution area which each conspirator served. This

is not the law under either Miller or pre-Miller standards, as

Miller and Hamling clearly demonstrate. Hamling contem-

plates that persons guilty of substantive offenses which overlap

judicial districts subject themselves to the application of vary-

ing local standards, depending upon the locality of trial, and

we see no reason to devise a different rule for multistate con-

spiracies:

The fact that distributors of allegedly obscene materials

may be subjected to varying community standards in the

various federal judicial districts into which they transmit

the materials does not render a federal statute unconsti-

tutional because of the failure of appliction of uniform

national standards of obscenity. Those same distributors

may be subjected to such varying degrees of criminal

liability in prosecutions by the States for violations of

state obscenity statutes; we see no constitutional impedi-

ment to a similar rule for federal prosecutions. In Miller

15a

Nos. 77-5367, etc. United States v. Sandy, et al. 15

v. California, 413 U. S., at 32, we cited with approval Mr.

Chief Justice Warren’s statement:

“[W]hen the Court said in Roth that obscenity is to

be defined by reference to ‘community standards,’

it meant community standards—not a national stan-

dard, as is sometimes argued. I believe that there

is no provable ‘national standard,’ and perhaps there

should be none. At all events, this Court has not

been able to enunciate one, and it would be unrea-

sonable to expect local courts to divine one. It is

said that such a ‘community’ approach may well

result in material being proscribed as obscene in one

community but not in another, and, in all probability,

that is true. But communities throughout the Na-

tion are in fact diverse, and it must be remembered

that, in cases such as this one, the Court is con-

fronted with the task of reconciling conflicting rights

of the diverse communities within our society and of

individuals.” Jacobellis v. Ohio, 378 U. S. 184, 200-

201 (1964) (dissenting opinion ).

Hamling, supra, 418 U.S. at 106-07. Having voluntarily chosen

to enter a conspiracy of national scope, appellants limited

their right to be tried according to the standards of the

localities in which their operations are centered.

A related claim is appellants’ assertion that the district

court abused its discretion in failing to permit introduction

of evidence concerning the standards of communities outside

the Western District of Tennessee. It is true that prior to

trial, counsel for Gordon indicated a desire to offer evidence

concerning the prevailing standards of New England, to which

the trial judge replied, “I don’t think we need any proof along

those lines.” This ruling was made in advance of the trial

and counsel never stated what proof they intended to offer into

evidence, nor was any formal offer of proof made at trial.

Assuming, without deciding, that the pretrial offer and the

judge’s ruling were sufficient to preserve the issue for review

16a

16 United States v. Sandy, et al. Nos. 77-5367, etc.

at this stage, but see Fed. R. Evid. 103(a)(2), we neverthe-

less read Hamling as leaving such decisions largely to the dis-

cretion of the trial judge,’° a discretion which we find was not

abused under the circumstances here.

IV.

Appellants Sandy and Friedlander particularly complain

that the evidence was insufficient to uphold the district court’s

finding that they possessed the requisite scienter concerning

the nature of the film. No claim is made that the district

court misreprehended the governing legal principles. In this

respect the trial judge correctly followed Hamling to observe

that “it is not necessary for the government to prove that the

conspirators had actual knowledge that the film was obscene.

The scienter required to support a conviction is that they knew

the general nature and character of the films.” See Hamling,

supra, 418 U.S. at 123.

While necessarily circumstantial, the evidence nevertheless

strongly supports the trial judge’s finding in this respect. The

evidence indicated extensive discussions between Shiffrin and

the defendants with respect to the film and its display else-

where. The finder of fact, whether trial judge or jury, is not

obliged to lay aside his general knowledge of life in evaluating

the evidence and the several communications which were a

part of the evidence. There was proof that some of the

appellants handled other sexually explicit films for Sherpix.

There was evidence that, as part of his sales pitch, Shiffrin

10 After holding that the trier of fact in a federal obscenity prosecu-

: y Pp

tion should draw upon the community standards of the vicinage of

trial, Hamling meted: . ‘

(bJut this is not to say that a district court would not be at

liberty to admit evidence of standards existing in some place

outside of this particular district, if it felt such evidence would

roy ot Sn jurors in the resolution of the issues which they were

e.

418 US. at 106.

17a

Nos. 77-5367, etc. | United States v. Sandy, et al. 17

represented to each sub-distributor that the film had been

shown at the Lido East and Cini Lido in New York, known

in the industry as theaters specializing in the exhibition of

X-rated films. The defendants knew that the film was itself

X-rated.'" While some X-rated films may not be obscene, it

asks too much of credulity to expect that under the circum-

stances the defendants could not have known of the general

nature and character of “School Girl,” even though there may

not have been proof that they actually viewed the film. There

is thus substantial evidence to support the trial judge’s finding

that these defendants possessed the necessary degree of

scienter.

V.

Finally, appellant Friedlander claims that his constitutional

right to a speedy trial was violated in the delay between the

return of the indictment in February, 1973 and the trial before

Judge McRae in January, 1976. He claims particular prejudice

stemming from the death of the other principal employee,

besides himself, of Marvin Films, who, it is claimed, would

have testified at the trial. No effort is made to show how the

11 Although Sandy asserts that there is no evidence that an

X-rating generally contemplates sexually explicit material, we find

applicable to the trial judge’s role in non-jury cases the same observa-

tions we made with — to ‘og general knowledge in United

States v. Jones, 580 F. 219 (6th Cir. 1978).

While Wi otes that “[t]h of j ] eral

knowledge poe definable Teese’ pnd Emre

en

who employ them. ore ponareny K. Davis, A istrative Law

Text §1 06 at 305 (3d ed. 1972).

Id. at 222. The trial court did not err in its understanding of the term,

“X-rated.”

18a

18 United States v. Sandy, et al. Nos. 77-5367, etc.

four-pronged test of Barker v. Wingo, 407 U.S. 514 (1972),

applied here, would produce a holding of constitutionally

impermissible delay, and we find none.

The remaining allegations of error are mostly variations of

those already discussed. We find no merit in them.

Affirmed.

19a

Exhibit B.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 77-5367-8-9-70-71

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

v.

JEROME SANDY anp AMERICAN PICTURE

EXCHANGE, (77-5367)

ELLIS GORDON, (77-5368)

MARVIN ZIDE anp ALLIED FILM EX-

CHANGE, INC., (77-5369)

JOHN O. GLAUS, (77-5370)

MARVIN FRIEDLANDER anp MARVIN FILMS, (77-5371)

Defendants- Appellants.

Before: ENGEL AND Kerrn, Circuit Judges, and Peck, Senior

Circuit Judge.

Judgment.

APPEAL from the United States District Court for the

Western District of Tennessee.

THis Cause came on to be heard on the record from the

United States District Court for the Western District of Ten-

nessee, and was argued by counsel.

20a

On ConsIpERATION WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said District

Court in this cause be and the same is hereby affirmed.

No costs taxed. |

Entered by order of the Court.

JOHN P. HEHMAN,

Clerk.

Filed July 27, 1979.

Issued as Mandate August 17, 1979.

2la

Exhibit C.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. No. CR-73-45

PAUL DAVID GERBER, er AL.,

Defendants.

Memorandum Decision Setting Forth Findings of Facts

and Conclusions of Law.

On January 5, 1976 and January 6, 1976, Richard Louis

Miller; Ellis Gordon; Marvin Friedlander; Marvin Films, Inc.;

Martin Zide; Allied Film Exchange, Inc.; Jerome Sandy;

American International Pictures Exchange of Washington,

D.C., Inc.; Abbott Morton Swartz; Independent-Film Dis-

tributors, Inc.; Emanuel Youngerman; M.Y. Film Company,

Inc.; John O. Glaus; Lou Wolff; and Harry Brandt Booking

Office, Inc., all defendants in the instant case, participated as

defendants in a non-jury trial concerning the offense alleged

against them in the Indictment in the instant case.

Immediately thereafter a protracted jury trial was con-

ducted with regard to certain other individual and corporate

co-defendants in this cause. In that trial, the issue of obsceni-

ty was vigorously contested. Upon the basis of USA v. Marks,

520 F.2d 913 (C.A. 6, 1975), the standard for determining

22a

obscenity was considered to be those standards enumerated in

the Miller v. California, 413 U.S. 15 (1973) and other cases

decided on the same date, even though the alleged criminal

conduct occurred before Miller was announced.

With regard to the defendants who agreed to this non-jury

trial, it was agreed that these defendants would not offer ex-

pert proof upon the issue of obscenity, and that this issue

would be determined by the Court, based upon the Court’s

viewing of the mo+ie at the same time that the jury viewed the

movie for the purpose of determining whether the movie was

obscene in the matter of the trial of the other defendants.

After the jury trial of the other defendants, but before this

Court sentenced those found guilty and before the Court filed

its Findings of Facts in this phase of the case, it was learned

that the United States Supreme Court had granted certiorari

in U.S. v. Marks, 424 U.S. 942 (1976). Pending a ruling in

that case, all phases of the instant case were stayed. On

March 1, 1977, the Supreme Court issued its ruling in Marks,

which reversed the Court of Appeals for the Sixth Circuit and

held that certain Miller v. California, supra, standards did not

apply to pre Miller conduct.

This is the belated ruling upon the non-jury phase of the

case. All of the defendants being considered were indicted in

Count I of the Indictment, which charged that these defend-

ants and all other defendants in the case were engaged in a

conspiracy to violate the law pertaining to transportation of

obscene moving picture film.

CONSPIRACY

All the defendants are said to have been members of a con-

spiracy, the main purpose of which was to knowingly use com-

mon carriers in interstate commerce in order to transport an

23a

obscene movie entitled “School Girl.” There are fifteen de-

fendants included in this ruling. All but one of these defend-

ants, Richard Lewis Miller, are individuals or corporations

that were engaged in the business of distributing motion pic-

ture films in accordance with a system of distribution which

has evolved in the motion picture industry.

Twelve of these fifteen defendants are composed of six pairs

of individual defendants who are affiliated with corporate

counterparts, i.e., Marvin Friedlander and Marvin Films, Inc.

The defendant named in the Indictment as “Richard Lewis

Miller, a/k/a R. L. Mills” was shown by the proof to be

Richard Louis Miller, who also used the name R. L. Mills in

the matter of his participation in the production and sale of

the motion picture “School Girl.”

The defendant Richard Louis Miller, under the name of R.

L. Mills produced the motion picture film entitled “School

Girl,” and allowed this fact to be advertised by including this

fact as a part of the introduction of motion picture film in that

portion of the film normally referred to as the credits.

Prior to August 26, 1971, the defendant Richard Lewis

Miller, along with Paul David Gerber, owned all rights and

interest in and to the film entitled “School Girl.” On August

26, 1971, the defendant Richard Louis Miller and Paul David

Gerber in the State of California sold all of their interest in the

motion picture film entitled “School Girl” to Sherpix, Inc.,

another defendant, and received $41,000 at San F rancisco,

California, which payment included payment for a complete

and final transfer of all rights, title, and interest in and to the

motion picture film “School Girl.”

In connection with the transfer, Richard Louis Miller

agreed by written instrument to indemnify Sherpix, Inc. for

any claim by R. L. Mills; and Sherpix, Inc., by written agree-

ment, agreed not to use the name Paul David Gerber in the

24a

distribution of said film in any connection as the maker of said

motion picture film.

Prior to the time of the purchase of “School Girl” and subse-

quent thereto, Sherpix engaged in the business of distributing

motion pictures. Art Theatre Guild, Inc., which operated

theatres throughout the United States, and Sherpix were

owned and controlled at all times relevant hereto by Louis K.

Sher, an individual co-defendant not covered by this ruling.

Sherpix had distributed a variety of types of motion picture

films. However, it had begun to concentrate on X-rated sex-

ually explicit movies.

In the film business a motion picture is customarily manu-

factured or created by a person called a producer. Once a film

is created, arrangements are customarily made with a so-

called distributor to sell the film to exhibitors. The distributor

is responsible for all of the details involved in distribution of

the film, including the preparation of advertising materials,

shipment of prints, availability of prints and similar matters.

Bookers are people or companies that arrange films for ex-

hibitors.

The exhibitor and the distributor customarily agree that the

exhibitor will have a copy of one of the prints of the motion

picture for a given period of time, and in exchange the exhibi-

tor agrees to remit to the distributor a certain prearranged

percentage of the monies received from paying patrons.

If a film becomes sought after by many exhibitors, the dis-

tributor will utilize sub-distributors to assume responsibility

for the distribution of the film in separate geographical areas

which have been assigned to the sub-distributors by custom

within the industry.

In those instances where a sub-distributorship is involved,

the exhibitor customarily remits a percentage of the monies re-

ceived from paying patrons to the sub-distributor, who then

25a

divides this amount according to an agreed percentage with

the prime distributor.

After August 26, 1971, Sherpix undertook the distribution of

the film “School Girl” on a national basis. Sherpix arranged

for the exhibition of the film “School Girl” at the Cine Lido

Theatre and the Lido East Theatre in New York City, which

theatres had reputations in the motion picture industry for

showing sex-oriented films.

The use of sub-distributors commenced after distribution of

“School Girl” had become so widespread and extensive and the

demands on Saul Shiffrin, an executive of Sherpix, so great

that it became profitable to Sherpix to utilize services of sub-

distributors in the continued distribution of “School Girl.”

No written agreements were made with any sub-distributor

for the distribution of the film in any given geographical area.

Saul Shiffrin was familiar with the people who acted as in-

dependent sub-distributors in various areas of the United

States and had known them all well as a result of prior contact

in the motion picture industry.!

Sherpix reserved to itself the right of approval of the exhibi-

tion of the film “School Girl” in any theatre, including the

theatres operated by its affiliate, Art Theatre Guild.

Basically, each sub-distributor was assigned a specific geo-

graphical area, and he was the exclusive sub-distributor with-

in that geographical area.

Because there are a limited number of copies of the film, it is

understood and agreed by those members of the distribution

network that they will ship the copies to other areas (inter-

state) when directed to do so by the owner or distributor of the

‘Saul Shiffrin was granted immunity and furnished much of the informa-

tion and testimony in various phases of this case, albeit at times reluctantly.

Trial Exhibit 1 in this phase of the case is a 19-page stipulation of his testi-

mony.

26a

film. The proof reflects that this was not only agreed to but

was done by some of the sub-distributors.

Since 1958, Ellis Gordon has been in business as an inde-

pendent sub-distributor of motion picture films. Ellis Gordon

operated Ellis Gordon Films as a sole proprietorship approxi-

mately thirteen years prior to February 23, 1972. During the

period February 23, 1972 through September 17, 1975, Ellis

Gordon Films was operated by Ellis Gordon and Michael

Fleischer as a partnership.

As a sub-distributor, it was the responsibility of Ellis Gor-

don Films to find exhibitors for such films as were assigned to

it for distribution by a producer or nation-wide distributor.

In 1968, Ellis Gordon, on behalf of Ellis Gordon Films,

agreed with Saul Shiffrin acting on behalf of Sherpix that Ellis

Gordon Films would distribute in New England films distrib-

uted nationally by Sherpix.

The agreement to distribute Sherpix films in New England

made in 1968 was a verbal agreement and did not obligate

Ellis Gordon Films to distribute each and every film made or

distributed by Sherpix.

Ellis Gordon films acted as a sub-distributor of the film

“School Girl” during the period set forth in Count I of the In-

dictment pursuant to the 1968 agreement. In talking to Mr.

Gordon, Mr. Shiffrin told him that “School Girl” was playing

in the Lido East and the Cine Lido Theatres in New York, was

doing quite well, and that it was an X-rated movie.

Although there was testimony that pictures are given X rat-

ings for other reasons, the testimony shows that usually the X

rating means that the movie contains explicit sexual activity.

Ellis Gordon arranged to distribute the film “School Girl”

for exhibition at approximately fifteen theatres in the States of

Massachusetts, Connecticut, Vermont, and Maine. He did re-

ceive it via interstate shipment.

27a

Ellis Gordon had an interest in the success or failure of other

sub-distributors in the course of the distribution of the film

“School Girl” on a national basis because the attendant notori-

ety and publicity made it a more saleable movie. Further-

more, the sub-distributors and the distributor were financially

interested in an efficient and systematic method of making the

copies available when and where needed.

The other defendants being considered by this ruling who

were solicited and served as sub-distributors of the motion pic-

ture “School Girl” in a fashion similar to the defendant Ellis

Gordon were as follows:

Marvin Friedlander, an individual defendant, was the

president of the defendant Marvin Marvin [sic.] Films,

Inc., a New York corporation. Their geographical area

of sub-distribution was New York and New Jersey, where

they did cause the movie “School Girl” to be shown. They

also received and shipped the movie in interstate com-

merce.

The individual defendant Martin Zide and the corporate

defendant Allied Film Exchange, Inc. , sub-distributors of

the movie “School Girl” for Detroit, Michigan. They did

ship and receive a copy of the movie in an exchange via

interstate commerce with persons or companies who were

part of the distribution network.

The individual defendant Jerome Sandy and the corpor-

ate defendant American International Pictures Exchange

of Washington, D.C. served as sub-distributors who

caused the movie “School Girl” to be exhibited in Nor-

folk, Virginia. They did ship and receive a copy of the

movie in an exchange via interstate commerce with per-

sons or companies who were part of the distribution net-

work.

28a

The individual defendant Abbott Morton Swartz and the

corporate defendant Independant Film Distributors, Inc.

contend that they were not in fact sub-distributors of the

movie “School Girl.” However, they had previously

negotiated with Saul Shiffrin on behalf of Sherpix, Inc. to

serve as a sub-distributor for several other films, in-

cluding “The Stewardesses.” They did cause the exhibi-

tion of the movie “School Girl” in Moline, Illinois; Des

Moines, Iowa; Heron Lake, Minnesota; and Slayton,

Minnesota, for which they received the sub-distributor’s

fee on three of those occasions, and they did cause copies

of the movie “School Girl” to be shipped and received in

interstate commerce.

The individual defendant Emanuel Youngerman and the

corporate defendant M. Y. Film Company, Inc. served as

sub-distributors who caused the movie “School Girl” to

be exhibited in parts of Pennsylvania and New Jersey.

They did ship and receive a copy of the movie in ex-

change via interstate commerce with persons or com-

panies who were part of the distribution network.

The individual defendant John O. Glaus, d/b/a John O.

Glaus Agency, served as a sub-distributor who caused the

movie “School Girl” to be exhibited in the geographical

area known historically in the movie distribution industry

as Western Pennsylvania. At the request of Sherpix,

Inc., the distributor, John O. Glaus shipped the motion

picture to Toledo, Ohio, and Buffalo, New York, in fur-

therance of the distribution and exhibition of the movie.

According to the stipulated proof, the individual defendant

Louis Wolff was a long-time employee of the corporate de-

29a

fendant Harry Brandt Booking Office, Inc. A booking agent

serves the movie industry in a different capacity from the sub-

distributor. The booking agents provide a service to the ex-

hibitors for a fee; namely, they obtain film for exhibition on

certain dates, In order to be able to assure the exhibitor that a

film would be available the booking agent dealt with the dis-

tributor or sub-distributor, but only for the purpose of bring-

ing the distributor or sub-distributor and the exhibitor to-

gether for further arrangements. At that time the booking

agent stepped out of the picture.

In some instances in the initial stages of the distribution of a

film the distributor will contact a booking agent known to

represent certain exhibitors in order to build a reputation and

acclaim for the film. In the instant case the proof reflects that

Saul Shiffrin, acting for Sherpix, Inc., personally engaged in a

conversation with Lou Wolff and encouraged him to initiate

the necessary procedures at Brandt Booking Office to book

“School Girl” for exhibition at Trans-Lux Theatre in Wash-

ington, D.C., in order to build acclaim for this X-rated movie.

Later the necessary business arrangement between Sherpix

and Harry Brandt Booking Office was made whereby “School

Girl” was made available for exhibition at the Trans-Lux

Theatre in Washington, D.C.

The distribution of the movie “School Girl” in the manner

hereinbefore indicated occurred between a time on or about

November 1, 1971, when the initial 35 mm print of “School

Girl” was ready for distribution, and some date after July 31,

1972. “School Girl” was exhibited in 83 separate theaters

located in 19 separate states. Before July 31, 1972, Sherpix

had received approximately $211,000 as its distributors’ share

of the profits.

Sherpix and Art Theatre Guild, acting through its author-

ized employees caused “School Girl” to be shipped in inter-

state commerce to Memphis, Tennessee (Western District of

30a

Tennessee) on or about March 1, 1972. From on or about

March 2, 1972, until May 25, 1972, “School Girl” was shown

at the Studio Theatre in Memphis, Tennessee, one of the

numerous theatres operated by Art Theatre Guild in various

parts of the United States.

On or about June 15, 1972, Sherpix caused a print of

“School Girl” to be shipped by common carrier from Mem-

phis, Tennessee, to the sub-distributors Allied Film Exchange

at Detroit, Michigan.

On or about June 5, 1972, Gordon Craddock, an individual

co-defendant, acting for Craddock Films, Inc., a corporate co-

defendant, caused a print of the movie “School Girl” to be

shipped by interstate commerce to Memphis, Tennessee, and

subsequently to Springdale, Arkansas, from Memphis, Ten-

nessee.

SCIENTER

When the Indictment charges a conspiracy to transport an

obscene motion picture in interstate commerce, it is not neces-

sary for the government to prove that the conspirators had ac-

tual knowledge that the film was obscene. The scienter re-

quired to support a conviction is that they knew the general

nature and character of the films. US v. Marks, 520 F.2d 913,

1917 (C.A. 6 1975) rev'd. on other grounds, Marks v. US, ___

U.S. ___ (Mar. 1, 1977); 45 USLW, 4233 (Mar. 1, 1977).

In the instant case the government relied upon circumstan-

tial evidence in the cases against the defendants covered by

this ruling.

The words “hard core,” “pornography,” “porn,” “porno,”

“stag,” “erotic,” “sexploitation,” and “sensual” mean to an

adult person whose livelihood is derived from full-time em-

ployment in the motion picture distribution business that the

3la

general nature and character of the motion picture film in

question is one depicting, representing, and describing actual

or simulated sexual activity.

Sherpix, prior to August 26, 1971, and continuing there-

after, was a national distributor of motion picture films which

conducted its business from New York, New York. .

Weekly Variety was in 1971 and 1972 and had been for

many years prior to that time, a tradepaper distributed

throughout the motion picture industry used as a vehicle of

communication, advertisement, and informational sourte,

and was used by persons whose livelihood is derived by motion

picture films distribution as a tool for conducting business.

On February 10, 1971, Weekly Variety contained a review

of a motion picture film entitled “The Story Of F,” describing

it as “unadulterated stag,” “erotica,” and “for hardcore

buffs,” and showing the distributor as Sherpix.

On February 10, 1971, Weekly Variety published a news ar-

ticle describing a motion picture film entitled “Mona” in bold

5/16ths-inch headline print as “Hardcore.” The news article

continues making reference to “rough sex material,” “an ex-

tended stag film,” and “the porno . . . dollar.” The film is

reported to be a Sherpix film. The article continues, making

reference to “Adultery For Fun And Profit,” soon to be re-

leased, as a film like “Mona.”

Weekly Variety of February 24, 1971, contained a film re-

view of a motion picture film entitled “Mona,” describing it in

some detail and again noting that it was being distributed by

Sherpix.

On May 26, 1971, Weekly Variety published a film review

of a motion picture film entitled “Pink Narcissus” consuming

approximately 14 inches of one column, describing it in some

detail and summarizing it as “a 70-minute masturbation fan-

tasy” with an X rating and being distributed by Sherpix.

a

32a

On June 23, 1971, Weekly Variety published a film review

of a motion picture film entitled “Sub Rosa Rising” with a sub-

title, “Sex In San Francisco,” describing it in some detail, say-

ing that it contained “peep at grindhouses and stag films, testi-

monies from all sides — literally — aimed at spelling sexploits

among heteros, homos and bestial lovers.” This motion pic-

ture film is shown to be distributed by Sherpix.

On May 3, 1972, Weekly Variety carried a two-column bold

print headline concerning the Dutch Erotica Film Festival,

sometimes known as the Wet Dream Film Festival, to be held

in Amsterdam, Holland. The article refers to the fact that the

president of Sherpix, Inc. (Louis Sher) obtained the film

“Adultery For Fun And Profit” at the previous festival and has

agreed to pay $1,000 for the first prize in the upcoming festival

and to promise $5,000 in business to any films entered in the

festival which Sherpix considers to be profitable for distribu-

tion in the United States.

On October 20, 1971, and October 27, 1977, Weekly Varie-

ty published full page advertisements for Sherpix, advertising

the film “House of Wax” being distributed by it as a general

release film. Said advertisements contained information

blocked off in an approximately three-and-one-half-inch verti-

cal block which spanned the width of the page describing how

and from whom the film could be obtained. This information

stated, “From the crew who gave you ‘THE STEWARDESSES,”’

Sherpix, Inc. ... and our local representatives .. .”

Thereafter, the names, addresses and telephone numbers are

listed for the following sub-distributor defendants in the in-

stant case: Jerry Sandy, Ellis Gordon, Manny Youngerman,

John Glaus, Marty Zide, Abbott Swartz, and Marvin Fried-

lander.

On November 3, 1971, Weekly Variety published a two-

column headlined news article reporting the results of the

movie festival at Amsterdam, Holland. Concerning the festi-

33a

val, the article reported “its predecessor was one of the first

‘above ground’ fests dedicated to the pornographic film, this

year’s fest was only one of several showcasing hard porn.” The

article continued, noting that Sherpix had entered three films

in the festival, including “School Girl” and noting further that

“School Girl” won the first prize.

On January 12, 1972, Weekly Variety published a news ar-

ticle on page 5 with a bold two-column headline stating,

“N.Y. Pornopix ‘Harrassment’ Beaten; Some Doubt Smartness

of Big Defy; Slowness of Law Favors Sites.” The article con-

tinues and one column is continued on a second page. The

second paragraph of the article concerns the fact that the mo-

tion picture film “School Girl,” distributed by Sherpix, had

won the Amsterdam Festival and had been seized by the New

York Police Department while playing at the Cine Lido and

the Lido East theatres in New York, New York.

On February 2, 1972, Weekly Variety on page 5 published

under a column headline a news article concerning the Cine

Lido Theatre in New York City describing it as the “ flagship

location for hardcore porno features.” The article continues

for an entire column and details the history of the theatre and

refers to the fact that it had just completed a successful exhibi-

tion of the film “School Girl” distributed by Sherpix.

On September 27, 1972, Weekly Variety published a short

news article on page 3 under the headline “It’s Porno Biz As

Usual.” The article reports concerning exhibitions of sex-

related films in New York City referring specifically to the

Hollywood Twin theatres, stating “the twin houses have

played 16m loops and hardcore feature subruns like ‘School

Girl’ and ‘Mona.’”

The original version of the motion picture film entitled

“The Stewardesses,” which admittedly was an outstanding

box office success, depicts total male and female nudity with

scenes showing male and female participants in sexual inter-

34a

course without showing actual penetration, and depicts lesbi-

anism with oral contact clearly showing.

Ellis Gordon sub-distributed, for and on behalf of Sherpix,

the motion picture film entitled “The Stewardesses” to the-

atres for 47 separate exhibitions between March 5, 1971, and

November 2, 1972.

Marvin Friedlander, by and through Marvin Films, Inc.,

sub-distributed, for and on behalf of Sherpix, the motion pic-

ture film entitled “The Stewardesses” to theatres for 110

separate exhibitions between March 1971 and January 1973.

Martin Zide, by and through Allied Film Exchange, Inc.,

sub-distributed, for and on behalf of Sherpix, the motion pic-

ture film entitled “The Stewardesses” to theatres for 67 sepa-

rate exhibitions, 13 of which are admitted to be in the X-Rated

versions, between May 19, 1971, and October 26, 1972.

Jerome Sandy, by and through American International Pic-

tures Exchange of Washington, D.C., Inc., sub-distributed for

and on behalf of Sherpix, the motion picture film entitled

“The Stewardesses” to theatres for 22 separate exhibitions be-

tween February 24, 1971 and March 21, 1972.

Abbott Morton Swartz, by and through Independent Film

Distributors, Inc., sub-distributed for and on behalf of Sher-

pix, the motion picture film entitled “The Stewardesses” to

theatres for 102 separate exhibitions between February 26,

1971, and December 4, 1973.

Emanuel Youngerman, by and through M.Y. Film Com-

pany, Inc., sub-distributed for and on behalf of Sherpix, the

motion picture film entitled “The Stewardesses” to a theatre

for exhibition between January 5, 1972, and February 15,

1972.

John O. Glaus sub-distributed, for and on behalf of Sherpix,

Inc., to theatres the motion picture film entitled “The

Stewardesses” for 54 separate exhibitions between March 13,

1971, and September 11, 1973.

35a

There were four other movies which were distributed by

Sherpix and sub-distributed by the defendants Gordon; Fried-

lander; Marvin Films, Inc.; Zide; Allied Film Exchange, Inc.;

Jerome Sandy; American International Pictures Exchange of

Washington, D.C., Inc.; Abbott Morton Swartz; Independent

Film Distributors, Inc.; Emanuel Youngerman; M.Y. Film

Company, Inc.; and John O. Glaus, prior to or during the

period during which they sub-distributed “School Girl.” Those

movies all depict oral sex, sexual intercourse, lesbianism, and

exhibition of the genitals with sexual activity portrayed show-

ing actual contact and penetration. The movies were “Mona,”

“Adultery for Fun and Profit,” “History of the Blue Movie,”

and “Hollywood Blue.”

On June 21, 1972, in the movie advertisement section of The

Detroit Free Press, there was published an advertisement

measuring approximately 7 1/2 by 4 1/2 inches showing a

young female nude from the waist up with arms crossed over

her breasts stating that the motion picture film “School Girl”

was being exhibited at four neighborhood theatres. The

advertisement contains the words in bold print, “How Much

Mischief Can A Girl Get Into . . . If She Really Tries.” The

advertisement further states that the film is “A new lesson in

erotica by Beyond The Pleasure Principle.”* It shows the film

to be X-Rated and for adults only. It further states that the

film was the grand prize winner at the Amsterdam Erotic Film

Festival.

On November 23, 1971, The New York Times had published

the same advertisement on page 55, showing the film to be

premiering on that date at the Cine Lido and the Lido East

theatres in New York City. This advertisement varies only in

* This ad was used in various forms throughout the period of distribution of

the movie. The art work and format were obtained by Sherpix on or before

November 10, 1971.

36a

that it does not show the film to be X-Rated, but has the word

“Sex” written and further notes that it is a Sherpix release.

Also, this ad is approximately 5 by 3 inches.

On February 2, 1972, a similar but not identical advertise-

ment appeared in The New York Times advertising that the

film was playing at 16 separate theatres in the New York City

area including New Jersey.

On December 17, 1971, The New York Times had published

the same advertisement which originally was published on No-

vember 23, 1971 for the Cine Lido and the Lido East theatres

in New York City, except that the ad was reduced to 1 1/2 by

2 1/2 inches and carried the additional notation that it was

playing in its second month.

The Washington Post and The Evening Star And Daily

News in Washington, D.C., published in each of its editions

from August 9, 1972, through October 3, 1972, a 2-inch by

1 1/2-inch movie advertisement for “School Girl” showing it to

be playing at the Translux Theatre. This advertisement shows

only the upper torso of a nude girl with her arms crossed over

her breasts, the notation “How Much Mischief Can A Girl Get

Into . . . If She Really Tries!”, and the notation, “For Adults

Only.”

From March 1, 1972, through March 4, 1972, The Pitts-

burgh Press newspaper and The Pittsburgh Post Gazette

newspaper published a movie advertisement measuring 2 by 4

inches advertising that the motion picture film “School Girl”

was being exhibited at the Art Cinema. This advertisement

bears the silhouette of a nude female with the notation, “New

Hot Show Today Absolutely Unbelievable” and “No One

Under 18 Admitted.” The advertisement shows the motion

picture film “School Girl” as being exhibited with another mo-

tion picture film entitled “Peddlers of Sin.”

37a

OBSCENITY

As heretofore indicated when this non-jury phase of the case

was tried in January 1976, the issue of obscenity was sub-

mitted without expert proof and with the understanding that

the Court would be the trier of fact on the issue, based upon

the Court’s viewing of the movie. At the time, the law in this

Circuit was considered to be that Miller v. California, supra,

standards were applicable to cases involving acts committed

before the decision in Miller was announced June 21, 1973.

This was based upon the holding of the majority in United

States v. Marks, 520 F.2d 913 (C.A. 6, July 30, 1975). How-

ever, the Sixth Circuit ruling in Marks was reversed and

remanded in Marks v. United States, __. U.S. ____ (March 1,

1977). In that opinion the Supreme Court indicated that per-

sons indicted for conduct occurring prior to the decision in

Miller were entitled to a finding that materials were not

obscene unless they are “utterly without redeeming social

value,” as required by Memoirs v. Massachusetts, 383 U.S. 413

(1966). In the Marks opinion the Supreme Court also held

that in pre Miller conduct cases the defendants are entitled to

“any constitutional principle enunciated in Miller which

would serve to benefit” them. Footnote 3 of the Marks opin-

ion provides:

Miller held:

“The basic guidelines for the trier of fact must be: (a)

whether ‘the average person, applying contemporary

community standards’ would find that the work, taken as

a whole, appeals to the prurient interest . . .; (b) whether

the work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable state

law; and (c) whether the work, taken as a whole, lacks

38a

serious literary, artistic, political, or scientific value.”

413 U.S. at 24.

Under part (b) of the test, it is adequate if the statute, as

written or as judicially construed, specifically defines the

sexual conduct, depiction of which is forbidden. The

Court in Miller offered examples of what a State might

constitutionally choose to regulate:

“(a) Patently offensive representations or descriptions

of ultimate sexual acts, normal or perverted, actual or

simulated.

“(b) Patently offensive representations or descriptions

of masturbation, excretory functions, and lewd exhibi-

tion of the genitals.” 413 U.S., at 25.

Applying tests set as required in Marks, this Court finds that

the motion picture “School Girl” is in fact obscene. The Court

has seen it two times in what is believed to be its entirety and

in the form that it was caused to be transported and shown by

the defendants herein. It is hard core pornography.

The school girl portrayed in the movie is a college student

who undertakes to research a sex subculture. In order to do

this she responds to certain classified ads in the college under-

ground newspaper. This leads to a series of sexual episodes

which include having sexual intercourse with a husband under

the wife’s direction and ultimate participation as a third party,

mutual masturbation pursuant to direction from a man over

the telephone, sexual intercourse oral and otherwise with a

father and son team, and a group sex orgy. In addition, there

are episodes in which complete actual and prolonged sexual

intercourse between the school girl and her boyfriend is

shown. There is a similar episode portrayed between the

school girl’s female roommate and the school girl’s male pro-

39a

fessor who called at their apartment to inquire about the

welfare of the school girl. In addition the school girl and her

female roommate are shown in a prolonged lesbian episode.

All episodes show close shots of the genitals of the partici-

pants during the sexual encounters.

SUMMARY AND CONCLUSION

This Court concludes thai the defendants Ellis Gordon;

Marvin Friedlander; Marvin Films, Inc.; Martin Zide; Allied

Film Exchange, Inc.; Jerome Sandy; American International

Exchange of Washington, D.C., Inc.; Abbott Morton Swartz;

Independent Film Distributors, Inc.; Emanuel Youngerman;

M.Y. Film Company, Inc.; John O. Glaus; entered into a con-

spiracy with Saul Shiffrin; Sherpix, Inc.; Art Theater Guild,

Inc.; and others, including Gordon Craddock, to distribute

the obscene motion picture “School Girl” on a multi-state basis

by shipping and receiving copies of the movie by common car-

rier and otherwise in interstate commerce. This conspiracy

was in existence from on or about November 1, 1971, until on

or about October 3, 1972.

During the existence of the conspiracy the above mentioned

defendants knew the general nature and character of the

movie “School Girl,” which the Court has found to be obscene

in fact.

The Court concludes that the defendants Richard Lewis

Miller and Lou Wolff and Harry Brandt Booking Office, Inc.

should be found not guilty because the proof does not establish

that they joined the distribution conspiracy which the Court

has found to exist with regard to certain other defendants.

While the Court is convinced that the person who appeared

at the trial and said his name was Richard Louis Miller and the

persons referred to in the Indictment as Richard Lewis Miller

40a

and R. L. Mills are all one and the same person, the Court

concludes that Miller’s participation in the distribution of the

movie “School Girl” terminated with its outright sale in Cali-

fornia. He retained no royalties or other forms of participa-

tion in the profits from the exhibition of it. The government

argues that Miller had a continuing interest in its success be-

cause that would enhance the value of future productions

under the name R. L. Mills and the other identifying phases of

the credits; however, there is no proof to support the argument

that other movies owned by him were in being or even planned

at the time of the sale. Although the proof does establish that

the defendant Miller knew the nature and character of the

movie later determined to be obscene, the Court does find him

not guilty as charged in the Indictment.

Because the defendants Lou Wolff and Harry Brandt Book-

ing Office, Inc. participated in the distribution and exhibition

of the movie “School Girl” in a different fashion from the

above-named defendants who were part of the distribution

conspiracy, the Court concludes that they were not members

of the distribution conspiracy shown by the proof. Booking

agents function for a limited purpose in the distribution and

exhibition of a movie. They bring the distributor and the ex-

hibitor together for a flat fee, not a percentage of the receipts.

They do not assume responsibility for the manner and means

of the delivery and forwarding of a movie shipped to an ex-

hibitor. In the instant case the proof applicable to them is

minimal, and in the opinion of the Court does not establish

that they knowingly joined the continuing distribution con-

spiracy. Therefore the Court concludes that Lou Wolff and

Harry Brandt Booking Office, Inc. are not guilty as charged in

the Indictment in this case.

The Court regrets the protracted delay that has occurred be-

tween the commission of the conduct included in the crime

charged and this ruling on the case. Particularly, because the

ag cell

eS ee

4la

proof reflects that all individual defendants were actively and

openly engaged in the movie industry. Substantial phases of

the delay were caused by stays which were implemented pend-

ing rulings on appeals in other cases which appeared to have

issues relevant to this case. In addition to the stay occasioned

by the Marks case as mentioned above, this case was stayed

pending an appeal of a ruling on a Motion to Dismiss in an-

other case which was pending in this District.

This is made even more regrettable by virtue of the fact that

the law in cases of this kind has been so difficult to interpret

and apply, thereby causing great controversy for the public

and governmental officials in all levels of all branches of the

federal, state, and local governments. However, the Supreme

Court consistently has held that obscene motion picture films

are not protected by the First Amendment to the United States

Constitution and Congress has seen fit to make the transporta-

tion of obscene motion picture films by common carrier a

criminal offense. The above ruling is this Court’s application

of the facts of this case to the above mentioned principles of

law and the numerous authorities which have spoken to those

principles.

The Court is of the opinion that there is in the record infor-

mation sufficient to enable the meaningful exercise of sentenc-

ing discretion without a pre-sentence investigation. There-

fore, the Clerk is directed to notify all defendants found guilty

herein that the sentencing hearing will be conducted in Court-

room Number 2, United States Courthouse, Memphis, Ten-

nessee, at 1:30 P.M., Friday, August 19, 1977.

Enter: This 28th day of July 1977.

ROBERT M. MCRAE, JR., Judge

United States District Court

42a

Extension of Time for Filing Motion for New Trial.

Because the attorneys for the defendants must be notified of

this ruling by mail, the Court hereby extends the time for fil-

ing a Motion for New Trial to fifteen days from the date here- |

of, in the event that any defendant wishes to file a Motion for |

New Trial.

ROBERT M. McRAE, JR., Judge