Petition — Gordon v. United States
Supreme Court brief1979
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
Nos. A-156, A-178, A-182
MARVIN FRIEDLANDER and MARVIN FILMS, INC.,
MARTIN ZIDE and ALLIED FILM EXCHANGE, INC., and
JEROME SANDY and AMERICAN INTERNATIONAL
PICTURES EXCHANGE OF WASHINGTON, D.C., INC.,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Sixth Judicial Circuit
ALBERT C. HARVEY
2518—100 North Main Building
Memphis, Tennessee 38103
Counsel for Petitioners
Of Counsel:
THOMASON, CRAWFORD & HENDRIX
2518—100 North Main Building
Memphis, Tennessee 38103
AS LT AUS TRG IAI EMIRATE
St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477
INDEX
Page
De a kaka chen eeesecccesws 2
Nae hc uw hence eesensceses 2
ec cb wea hws ce ewnsecssecee 2
Constitutional Provisions Involved ................... 3
I edness sees nsescccsevvces 5
Reasons for Gicemtims the Writ ........ 2.2... . ccc eceees 9
1. No Single General Conspiracy Was Proven Which
Would Encompass the Acts of These Petitioners and Link
Them to Any Such Conspiracy for Which Venue Could
Properly Be Established in Memphis, Tennessee ........ 9
2. Venue for the Petitioners’ Trial Was Improperly Laid
EEO ee ee 12
3. The Petitioners Were Clearly Prejudiced by Being
Tried Improperly Under the Obscenity Standard Set Forth
in Miller v. California, 413 U.S. 15 (1973) ............ 15
CII occ cere cence a eitesheessecuses 17
EOS LITE Oe Cee Eee A-1
ER A-19
TABLE OF AUTHORITIES
U. S. Constitution:
Article III, § 2 6th Amendment .................... 2 ¥2
Statutes and Rules:
NE ao iba oid Wind bie Gas és ares Weenie a6 0 o's 3, 12
I I 4-0 54a a 4 «bin be wh 0S aS wR ew clo 3,4
A SP re ee re eer er ere 5, 17
Federal Rules of Criminal Procedure, Rule 18 .......... 4, 12
Cases:
Hamling v. United States, 418 U.S. 87 (1974) ........ 11, 14
Hyde v. United States, 225 U.S. 347 (1912) .......... 11,12
Kotteakos v. United States, 320 U.S. 750 (1946) ........ 10
Marks v. United States, 430 U.S. 188 (1977) ........ 15, 16
Memoirs v. United States, 383 U.S. 413 (1966) ....15, 16, 17
Miller v. California, 413 U.S. 15 (1973) ...... 13, 15, 16, 17
Roth v. United States, 354 U.S. 476 (1957) ....15, 16, 17
United States v. Boney, 572 F.2d 397 (2d Cir. 1978) .. 12
United States v. Elliott, 571 F.2d 880 (Sth Cir.), cert. de-
nied, — U.S. —, 99 S.Ct. 349 (1978) .............. 9
United States v. Levine, 546 F.2d 568 (Sth Cir. 1977) .. 9
Treatise:
Frederick F. Schauer, The Law of Obscenity (1976) ....14, 15
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
Nos. A-156, A-178, A-182
MARVIN FRIEDLANDER and MARVIN FILMS, INC.,
MARTIN ZIDE and ALLIED FiLM EXCHANGE, INC., and
JEROME SANDY and AMERICAN INTERNATIONAL
PICTURES EXCHANGE OF WASHINGTON, D.C., INC.,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Sixth Judicial Circuit
The petitioners, Marvin Friedlander and Marvin Films, Inc.,
Martin Zide and Allied Film Exchange, Inc., and Jerome
Sandy and American International Pictures Exchange of Wash-
ington, D.C., Inc., pray that a writ of certiorari issue to review
the decision of the United States Court of Appeals for the
Sixth Judicial Circuit rendered in these proceedings on July
27, 1979.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Sixth Judicial Circuit, as yet unreported, affirmed the decision
of the United States District Court for the Western District of
Tennessee. The opinion of the Court of Appeals appears in
Appendix A. The opinion of the District Court for the Western
District of Tennessee, also unreported, appears in Appendix B.
JURISDICTION
The decision of the United States Court of Appeals for the
Sixth Judicial Circuit was entered on July 27, 1979. See Ap-
pendix A. This petition for certiorari was filed less than sixty
days from the date aforesaid, an extension until September 25,
1979, for filing the petition having been granted each of these
petitioners. The jurisdiction of this Court is invoked under the
provisions of 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. What are the constitutional standards required to estab-
lish a nationwide “wheel conspiracy” of an alleged pornographic
film with the “Rim of the Wheel” composed of independent film
sub-distributors doing business in various parts of the country?
2. Are there constitutional venue limitations to a so-called
“national conspiracy” to prohibit trial in a district foreign to the
activities (and respective community standards) of independent
film sub-distribtuors?
3. Was the prejudice resulting from the pre-trial ruling that
the Miller standard would be determinative of the obscenity of
the film, and submission of evidence pursuant to that ruling, so
—
minimal that the error can be deemed harmless in light of the
trial court’s ultimate reliance on both the Miller and Roth-
Memoirs standards?
CONSTITUTIONAL PROVISIONS, STATUTES,
AND RULES OF COURT INVOLVED
The Sixth Amendment to the Constitution of the United
States provides in pertinent part as follows:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury
of the State and District wherein the crime shall have
been committed, which District shall have been previously
ascertained by law....
Venue is also a constitutionally-guaranteed matter:
The trial of all crimes, . . . shall be by jury; and such
trial shall be held in the state where the said crimes shall
have been committed... .
U.S. Constitution, article III, § 2.
The petitioners were convicted of conspiring to distribute an
obscene film in interstate conimerce, in violation of 18 U.S.C.
§§ 371 and 1462, the former of which provides in pertinent
part:
If two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any pur-
pose, and one or more of such persons do any act to effect
the object of the conspiracy, each shall be fined not more
than $10,000 or imprisoned not more than five years, or
both.
— re
The underlying offense, transportation of obscene matters, is
- defined in 18 U.S.C. § 1462:
Whoever brings into the United States, or any place sub-
ject to the jurisdiction thereof, or knowingly uses any ex-
press company or any other common carrier, for carriage
in interstate or foreign commerce—
(a) any obscene, lewd, lascivious, or filthy . . . motion-
picture film, . . . or other matter of indecent character; or
(c) . . . any written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving in-
formation, directly or indirectly, where, how, or of whom,
or by what means any of such mentioned articles, matters,
or things may be obtained or made; or
Whoever knowingly takes from such express company or
other common carrier any matter or thing the carriage of
which is herein made unlawful—
Shall be fined not more than $5,000 or imprisoned not
more than five years, or both, for the first such offense, and
shall be fined not more than $10,000 or imprisoned not
more than 10 years, or both, for each such offense there-
after.
Rule 18 of the Federal Rules of Criminal Procedure describes
the place of prosecution and trial:
Except as otherwise permitted by statute or by these Rules,
the prosecution shall be had in a district in which the offense
was committed. The court shall fix the place of the trial
within the district with due regard o the convenience of the
defendant and the witnesses.
— va
The “Harmless Error” statute, 28 U.S.C. § 2111, provides:
On the hearing of any appeal or writ of certiorari in any
case, the court shall give judgment after an examination
of the record without regard to errors or defects which do
not affect the substantial rights of the parties.
STATEMENT OF THE CASE
On February 15, 1973, the United States Grand Jury re-
turned indictments charging the petitioners and other defend-
ants with conspiring to distribute an obscene film, “School
Girl.” After pre-trial rulings concerning various standards
which the district court considered applicable, the petitioners
elected trial without a jury, with factual stipulations constitut-
ing the majority of the evidence. (The alleged interstate shipment
of the film, including the testimony of Saul Shiffrin, various news-
paper advertisements, and testimony with regard to subscriptions
to Weekly Variety magazine, a trade publication were the stipu-
lated subjects. )
The “Pre-Trial Stipulation Regarding Marvin Friedlander and
Marvin Films, Inc.” and “Additional Pre-Trial Stipulation of
Marvin Friedlander and Marvin Films, Inc.,” described the
distribution by Marvin Films, Inc., of the film in New York
and northern New Jersey only, admitted that Marvin Films,
Inc., subscribed to the trade journal Weekly Variety, and
stated that these petitioners acted as a film booking agent,
or sub-distributor, between Sherpix, Inc., and the ultimate film
exhibitor. Petitioners Martin Zide and Allied Film Exchange,
Inc., stipulated that they had agreed to sub-distribute “School
Girl” in the lower peninsula of Michigan, and that Allied Film
Exchange, Inc., had never subscribed to either Daily Variety
or Weekly Variety. Petitioner Jerome Sandy stipulated that he
had subscribed to Weekly Variety during the period of No-
a ho
vember 12, 1971, to November 11, 1972, only, and that’on be-
half of petitioner American International Pictures Exchange of
Washington, D.C., Inc., he agreed in a conversation with Saul
Shiffrin of Sherpix, Inc., in or around 1969, to sub-distribute
films in the area of the District of Columbia, Maryland, Vir-
ginia and portions of Delaware and West. Virginia.
The indictment was based on the showing of “School Girl”
in Memphis, Tennessee, although these petitioners have never
had any connection with the film and its showing in Tennessee.
The prosecution contended that the showing of the film in Mem-
phis was an act of conspiracy between Sherpix and the sub-
distributors which brought the alleged conspiracy within the
jurisdiction of the trial court.
The distribution of this film was undertaken on a national
basis by Sherpix, Inc. The film’s popularity was such that Sher-
pix chose to utilize the services of independent sub-distributors,
rather than dealing directly with the exhibitors in various lo-
cales. It was alleged that each of these petitioners was con-
tacted, through the appropriate individual, by Sherpix, Inc.,
concerning sub-distribution rights to the film in generally speci-
fied geographical areas of the United States. As the trial court
noted, each sub-distributor was assigned a specific geographical
area with exclusive sub-distributor rights therein. Shipment of
the film copies from one region to another was at the direction
of the film’s owner or distributor, who occasionally requested
that a sub-distributor forward the film copy to the sub-distrib-
utor for another region. Each booking and play date was sub-
ject to Sherpix’s approval before the film could be distributed
to any theater. Further, Sherpix required the sub-distributor to
collect daily box office reports and weekly settlement sheets from
each theater to which the film was distributed.
The indictment charges Marvin Friedlander and Marvin
Films, Inc., with participation in four specific shipments. On
pn, Soe
April 25, 1972, the film “School Girl” was allegedly shipped
from Scottsdale, Arizona, to Buffalo, New York, where Marvin
Films, Inc., received the film. On June 1, 1972, the indictment
charges that Sherpix, through Saul Shiffrin or Tom Berman,
and Marvin Films, Inc., caused “School Girl” to be shipped
from Buffalo, New York, to Ellis Gordon at Boston, Massa-
chusetts. The indictment further alleges that on June 28, 1972,
a copy of the film was shipped from Pittsburgh, Pennsylvania,
to Marvin Films, Inc., at Buffalo, New York. The grand jury
further charged that on February 16, 1972, Marvin Films, Inc.,
by and through Marvin Friedlander, president, caused “School
Girl” to be shipped from Albany, New York, to Buffalo, New
York. Thus, these petitioners were charged with receiving iso-
lated individual shipments from Scottsdale, Arizona, and from
Pittsburgh, Pennsylvania; with causing a shipment to be made
from Buffalo, New York, to another individual in Boston, Mas-
sachusetts, and with shipping a copy of the film intra-state on
one occasion, from Albany to Buffalo, New York.
The indictment alleges that a print of the film in question
was shipped from Atlanta, Georgia, to petitioner, American
International Pictures Exchange of Washington, D.C., Inc., at
Alexandria, Virginia, said shipment having been made by Sher-
pix, Inc. It is further alleged that the petitioner, American In-
ternational Pictures Exchangé of Washington, D.C., Inc., act-
ing by and through petitioner, Jerome Sandy, caused a print of
the film to be transported by common carrier to a Norfolk,
Virginia, theatre.
The Grand Jury charged that Sherpix, Inc., caused the film
to be shipped by common carrier from Memphis, Tennessee,
to petitioner, Allied Film Exchange, Inc., said shipment having
been received at Detroit, Michigan. Thereafter, the indictment
alleges, the petitioner Allied Film Exchange, Inc., acting by
and through petitioner Martin Zide, caused two prints of the
film to be shipped from New York, New York, to Oak Park,
Michigan.
These petitioners elected a “truncated trial” based on the
stipulated evidence and waived their right to a jury trial. The
remaining defendants, Tom Berman, Lewis K. Scher, Amold
Jordon, Gordon Craddock, Craddock Films, Inc., Art Theater
Guild, Inc., and Sherpix, Inc., were also charged under the
conspiracy count of the indictment, but were acquitted of that
charge after a jury trial. They were convicted of other charges
but those convictions were reversed and the cases remanded.
Upon their non-jury trial before the Honorable Robert M.
McRae, in the United States District Court for the Western
District of Tennessee, the petitioners were found guilty of con-
spiracy. The United States Court of Appeals for the Sixth
Circuit affirmed that decision, and these petitioners here seek a
writ of certiorari to review those rulings.
REASONS FOR GRANTING THE WRIT
1. No Single General Conspiracy Was Proven Which Would
Encompass the Acts of These Petitioners and Link Them to
Any Such Conspiracy for Which Venue Could Properly Be
Established in Memphis, Teunessee.
It was stipulated that these Petitioners entered into an oral
agreement with Saul Shiffrin, an agent of Sherpix, Inc., to dis-
tribute the film “School Girl” in geographical areas respectively
consisting of New York and northern New Jersey; Michigan’s
lower peninsula; and the District of Columbia, Virginia, Mary-
land, and portions of Delaware and West Virginia. There was
no proof that these petitioners caused this film to be trans-
ported to or from Memphis, Tennessee, or that these petition-
ers had any connection whatsoever with Memphis, Tennessee.
To sustain a conspiracy conviction against these petitioners,
the prosecution was required to prove an over-all plan or con-
spiracy or a national conspiracy.
The government maintained that the proof showed the ex-
istence of a single over-all plan, with which theory the trial
court and the Court of Appeals agreed. However, this finding
ignores the requirement that the sub-distributors, as “spokes”
of the conspiracy wheel, be aware of each other and act in
furtherance of a single illegal enterprise. Without both of these
elements, the alleged conspiracy lacks the “rim of the wheel”
to enclose the spokes and tie them together in a single con-
spiracy. The spoke-conspirators must interact, in addition to
sharing a common illegal objective. United States v. Elliott,
571 F.2d 880, 900 (Sth Cir.), cert. denied, 99 S. Ct. 349
(1978); United States v. Levine, 546 F.2d 658, 663 (Sth Cir.
1977).
It is respectfully submitted that the distribution of a film in
Memphis, Tennessee, by a film sub-distributor who had noth-
—
ing to do with these petitioners in New York, Michigan, or the
District of Columbia, respectively, does not sufficiently estab-
lish the rim of the wheel to link these petitioners into a single
conspiracy.
The Court of Appeals found that the “rim of the wheel”
which tied the many defendants together in a single criminal
undertaking was provided by the interdependence of the sub-
distributors and agreement to act in concert with one another
in circulating the film, adopting the position of the trial court
that each of these spokes had an interest in the success or
failure of the other sub-distributor-spokes.
This attempt to circumvent the requirements of Kotteakos v.
United States, 320 U.S. 750 (1946), and its progeny is with-
out factual support in the instant case. The evidence clearly
indicated that each of the sub-distributors acted independently
of the others, and that no single sub-distributor would be af-
fected financially by the movie’s success or lack thereof outside
the region of the sub-distributor’s exclusive distribution rights.
Both of these facts operate to bring this case squarely within
the holding of Kotteakos.
The most obvious ramifications of exclusive distribution rights
having been granted to each of the petitioners in his or its re-
spective geographical area by separate agreements with Sherpix
are that only Sherpix management and the sub-distributor for
a given area in which the film was playing would be concerned
with the booking arrangements in that area, and that the benefits
of the film’s success in that area, measured by profits, would
inure only to the persons active in the distribution efforts there.
No nationwide sharing of profits among sub-distributors has
been alleged or shown. Thus, the common purpose necessary
to a valid conspiracy is absent from this case.
Neither has the interdependence of the sub-distributors been
established. While occasional shipments from one regional sub-
~—
distributor to another were made, these incidents were entirely
at the direction and control of Sherpix and its officials. Having
retained the ultimate power to approve or disapprove any given
booking or dates of engagement, Sherpix was in the position
of directing the flow of the various copies of the film from one
engagement to another, with the concomitant power to direct
a sub-distributor to forward a copy of the film in its possession
to the city of the succeeding engagement, regardless of area
boundaries.
The proof does not show the existence of the nation-
wide conspiracy alleged for the additional reason that in light of
the acquittal of Sherpix and Art Theatre Guild, Inc., of the con-
spiracy charge, the alleged conspiracy lacked the requisite
“hub.” No indictment was brought against these corpora-
tions’ executive vice-president, Saul Shiffrin, with whom the
petitioners made arrangements for the film’s distribution in the
respective geographical areas.
Sherpix, the supposed hub, was not convicted of conspiracy
even though Saul Shiffrin, its agent, employee, and vice-presi-
dent acting in the course and scope of his duties, made all of
the agreements to sub-distribute. It would be illogical and in-
consistent to now allow Shiffrin to assume the position of the
hub. ;
With inconclusive proof that these parties entered into the
purported scheme with each of these respective petitioners, the
evidence is patently insufficient to sustain the sub-distributors’
convictions. See Hyde v. United States, 225 U.S. 347, 374-375
(1912).
Recognizing that there is no requirement of consistency of
verdicts or judgments of conviction among codefendants, Ham-
ling v. United States, 418 U.S. 87, 101 (1974), the petitioners
insist that this rule must be qualified by the exception for con-
—
spiracies. The conviction of a single codefendant in a conspiracy
trial cannot stand because of the requirement that “two or more
persons conspire... .” 18 U.S.C. § 371. Despite the conviction
of multiple defendants in the instant case, inherent in the very
Lature of the “wheel” conspiracy alleged is the fact that none
of those convicted conspired among themselves; rather, each of
them agreed with Sherpix, through Shiffrin, to handle distribu-
tion of “School Girl” in limited areas, subject to certain rights
reserved by Sherpix. This type of conspiracy is more properly
viewed as individual conspiracies linked only by the common
identity of the master distributors, Sherpix and Shiffrin. With-
out those common key figures’ convictions, none of the in-
dividual agreements can sustain conspiracy convictions as to the
petitioner sub-distributors. 225 U.S. at 374-375.
2. Venue for the Petitioners’ Trial Was Improperly Laid in
Memphis, Tennessee.
The proof of venue is an essential element of the govern-
ment’s case, a burden imposed by Article III, Section 2 of the
Constitution and restated in Rule 18 of the Federal Rules of
Criminal Procedure. The purpose of this requirement is to
prevent the government from choosing a favorable tribunal or
one which may be unduly inconvenient to a defendant. United
States v. Boney, 572 F.2d 397, 401 (2d Cir. 1978).
Venue in a conspiracy case may be laid where the conspira-
torial agreement was made or where an overt act of the conspir-
ators occurred. Hyde y. United States, 225 U.S. 347, 359-360
(1912). The agreements reached between Sherpix and these
petitioners, respectively, were reached far from Memphis, Ten-
nessee, in each instance. As discussed in the preceding section,
not one of these petitioners was connected with any conspiracy
to distribute the film “School Girl” in or through Memphis,
Tennessee.
= a
These petitioners committed no overt act in the Western Dis-
trict of Tennessee, nor were they part of any conspiracy there,
so that Memphis, Tennessee, cannot be a proper venue for any
action against these petitioners in connection with the distri-
bution of the film. The mere fortuity that Sherpix caused a
print of the film to be shipped on a single occasion from Mem-
phis to petitioner Allied Film Exchange, Inc., is clearly inade-
quate to establish venue in Memphis, since Allied Film Ex-
change had neither knowledge nor control of the source of its
shipment from Sherpix. The other petitioners were not shown
to have received or made shipments to the Western District of
Tennessee.
The prejudice inherent in being tried in an improper venue
was further compounded in the instant case by the trial judge’s
refusal to consider contemporary community standards of any
locale other than that of the trial, the Western District of Ten-
nessee. The indictment having charged a nationwide conspiracy
to distribute this film, the refusal to consider the contemporary
community standards of other communities than those in which
the trial was held violates the law announced in Miller v.
California, 413 U.S. 15 (1973). That there is no single nation-
wide standard concerning obscenity determinations is readily
acknowledged; as the court stated in Miller, “People in dif-
ferent States vary in their tastes and attitudes, and this diversity
is not to be strangled by the absolutism of imposed uniformity.”
Id. at 32-33.
Subjecting these petitioners to trial according to the con-
temporary community standards of the Western District of Ten-
nessee, with which they have absolutely no connection in their
respective distribution businesses, effectively establishes that
community’s standard as a nationwide standard by which ob-
scenity is judged.
—_.
The obvious unfairness of applying only the contemporary
standards of the forum community was noted by Frederick F.
Schauer in his treatise, The Law of Obscenity (1976):
The major difficulty with [applying the standards of the
frum community] is that it can lead to the most extreme
examples of forum-shopping by the prosecution. Guilt or
innocence should not, and do not normally, turn on where
the prosecution occurs, but this is the inevitable result
when a major substantive element of the offense must, by
definition, vary from place to place. The selection of the
proper place then takes on greater importance. The dangers
of selective prosecution become even greater in situations,
such as this one, where the place of prosecution defines the
offense charged. In a prosecution under 18 U.S.C. § 1461
for sending obscene matter through the mails, the prose-
cution could be at the place of mailing, the places of de-
livery, or any state through which the package passes. If
the standards are different in each state, than a putative
defendant may run the risk of prosecution under standards
that he has no logical reason to believe will be employed,
nor can he, with assurance, plan his activities to avoid those
areas in which such activities are illegal. To the extent that
the shift to local standards may involve the chilling effect
on constitutionally protected material . . ., the uncertainty
as to which community’s standards will be applied increases
the danger.
Id. at § 6.5, p. 128.
It was acknowledged in Hamling v. United States, 418 U.S.
87 (1974), that under proper circumstances, a district court could
properly “admit evidence of standards existing in some place out-
side of [the trial] district .. . .” Jd. at 106. A clearer case for
application of external standards is difficult to imagine, yet the
offers of proof concerning the standards of the petitioners’ own
_ =
<®
respective areas were flatly rejected.' This refusal constituted
a clear abuse of discretion and requires reversal of the courts’
actions below.
A chilling restraint of this magnitude must be deemed con-
stitutionally impermissible, and is a point in need of clarification
by this Court. See F.F. Schauer, The Law of Obscenity §§ 6.5
and 9.8 (1976).
3. The Petitioners Were Clearly Prejudiced by Being Tried
Improperly Under the Obscenity Standard Set Forth in Miller
v. California, 413 U.S. 15 (1973).
The District Court delayed in rendering its decision for ap-
proximately one and one-half years during which time the opin-
ion in Marks v. United States, 430 U.S. 188 (1977), was
handed down. Appendix B at 20. Marks clearly states that the
correct standard for obscenity to be applied to alleged criminal
conduct which occurred prior to the adoption of the standard
announced in Miller v. California, 413 U.S. 15 (1973), is that
test as stated in Roth v. United States, 354 U.S. 476 (1957),
and Memoirs v. Massachusetts, 383 U.S. 413 (1966). Peti-
tioners were indicted in 1973 for acts in 1971 and 1972; the
Marks decision is therefore controlling as to their alleged crim-
inal conduct. :
1 After the prosecution introduced proof concerning an X-rated
film, “The Stewardesses,” counsel for petitioners Jerome Sandy and
American International Pictures Exchange of Washington, D.C., Inc.,
asked the court to consider that the film had been approved by the
Maryland Board of Censors on June 8, 1971. Counsel for the re-
maining petitioners joined in that action, but the court replied:
I don’t mean to get into any hassle with the Maryland Board
of Censors, but it is entirely possible they may have accepted
something that wouldn’t pass muster. .. . 1 don’t think all these
remarks are necessarily true, and I make no apologies for hav-
ing your client here, Mr. Neal, he is a citizen and was indicted
by lawful process, and we are going to see it through.
III Appellate appendix at 651 (Trial transcript, morning session,
January 6, 1976, at 267.).
_— oe
Although the Court of Appeals found that the trial court had
rendered its opinion based upon the application of both the
Miller and Roth-Memoirs standards for assessing obscenity, the
petitioners and their co-defendants had presented evidence at the
trial in the belief that the Miller standard alone would be used,
as ordered by the trial court on December 12, 1975. This
change of standards after the conclusion of the proof was error
and clearly operated to the prejudice of the petitioners. These
petitioners have the right to be tried with the benefits of the
Roth-Memoirs standard, which requires in part that the allegedly
obscene material be “utterly without redeeming social value”
rather than merely lacking “serious literary, artistic, political or
scientific value,” as required by Miller. The Memoirs test fur-
ther required that the material’s dominant theme, taken as a
whole, appeal to a prurient interest in sex and that the material
be “patently offensive because it affronts contemporary com-
munity standards relating to the description or representation
of sexual matters.” 383 U.S. at 418. By contrast, the Miller
guidelines focus on the work’s serious value, “whether the
average person, applying contemporary community standards,
would find that the work, taken as a whole, appeals to the
prurient interest . . . [and] whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically defined
by the applicable state law . . .” 413 US. at 24.
Further, the trial court addressed only summarily the issue of
whether the Miller standard was met. The trial court stated that
its finding that “School Girl” was obscene was made by “apply-
ing tests set as required in Marks.” Appendix B at 21. There is
no elaboration as to the benefits of the Roth-Memoirs test to
which the petitioners are entitled under Marks.
The Court of Appeals recognized that “prejudice to sub-
stantial rights could exist by a mid-stream change in the rules
such as occurred here [, but was] unabic realistically to con-
—=
ceive of any prejudice upon this record.” Appendix A at 6.
Because the trial court indicated that its ultimate decision was
rendered through the application of both the Miller and Roth-
Memoirs tests, the Court of Appeals minimized the likelihood of
prejudice, and in this regard the appellate decision is in error. In
light of the trial court’s earlier ruling that Miller would govern
the determination of obscenity, any effort made by the peti-
tioners to show that the film was not obscene when judged by the
standards of Roth-Memoirs would have been futile. It cannot
be said that the petitioners’ substantial rights were unaffected
by this error, rendering the harmless error statute inapplicable.
28 U.S.C. § 2111. This was reversible error.
CONCLUSION
For these reasons, a Writ of Certiorari should issue to review
the judgment and opinion of the United States Court of Appeals
for the Sixth Judicial Circuit.
Respectfully submitted,
ALBERT C. HARVEY
2518—100 North Main Building
Memphis, Tennessee 38103
Counsel for Petitioner
Of Counsel:
THOMASON, CRAWFORD & HENDRIX
2518—100 North Main Building
Memphis, Tennessee 38 103
September 25, 1979
APPENDIX
APPENDIX A
Nos. 77-5367-8-9-70-71
UNITED STATES COURT OF APPEALS
for the Sixth Circuit
United States of America, i
Plaintiff-Appellee,
Jerome Sandy and American Inter-
national Pictures Exchange of
Washington, D.C. (77-5367),
Ellis Gordon (77-5368), f
|
Marvin Zide and Allied Film Ex-
change, Inc., (77-5369),
John O. Glaus (77-5370) and |
Marvin Friedlander and Marvin Films
(77-5371),
Defendants-Appellants. j
Appeal from the
United States Dis-
trict Court for the
Western District of
Tennessee.
Decided and Filed July 27, 1979
Before: Engel and Keith, Circuit Judges and Peck, Senior
Circuit Judge.
Engel, 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. §§ 371
and 1462 (1976). Their principal claim in this appeal is that
pa
'
they were prejudiced because the case was tried under the
obscenity standards of Miller v. California, 413 U.S. 15 (1973),
only to be decided later by the trial judge under pre-Miller
standards.
We hold upon the record before us that there was no preju-
dice 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 its 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 by 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
1 As for the ining three alleged conspirators, John O. Glaus
Agency was not tried, although Hiant John O. Glaus, individually,
was tried and convicted. Paul David Gerber a/k/a David Reberg,
—< oo
trial were acquitted on the conspiracy count but were found
guilty of the several substantive offenses charged against them.’
Conversely in the non-jury trial before District Judge Robert
M. McRae, Jr., three defendants were acquitted and the re-
maining twelve were convicted, eight of whom have appealed
here.
I
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 !),
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, approxi-
one of the conspirators responsible for the production of “School
Girl,” apparently was not apprehended and brought to trial. A third
defendant, Bernard Levy, was dismissed by an order of nolle
prosequi.
* 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. Massa-
chusetts, 383 U.S. 413 (1966).
= on
mately five months after the Supreme Court’s decision in Marks
Il, Judge McRae filed his findings of fact and conclusions of
law. Applying both the Miller and Roth-Memoirs tests,* he ad-
judged the filun to be obscene and found the appellants guilty.
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 constitu-
tional 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 be-
cause 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 de-
termining 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 . . .;
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct sa iainatined 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).
* The appellants’ claim that the trial court in fact only applied the
Miller test is not correct.
=
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 intercourse
with a husband under the wife’s direction and ultimate
participation as a third party, mutual masturbation pur-
suant 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 room-
mate 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 tht under either test the film is con-
stitutionally protected as a matter of law.* The issue, there-
5 Upon express inquiry by the court at oral argument, all parties
expressed the opinion that it was not necessary to the appeal that
the judges view the film. See United States v. Marks, 585 F. 2d 164,
171 (6th Cir. 1978) (Marks III). We therefore accept the trial court’s
account as accurate.
6 It seems to be characteristic of this kind of case that it is sus-
ceptible to many hypothetical dangers—dangers that innocent and
unsuspecting defendants will be swept into the conspiracy ——
and dangers arising out of a very justifiable sensitivity to Fi
Amendment rights. See, e.g., Paris Adult Theatre I v. Slayton, 413
U.S. 49, 83-101 (1973) (Brennan, J., dissenting). Nevertheless, on
a case-by-case basis, those dangers turn out to be more theoretical
=. oo
fore, is whether any prejudice affecting the sustantial 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.
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 preju-
dice 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
than real, for rarely is it with any force that the material in
question 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 obscenity
tests, a generally tolerant society tolerates it in all events. A second,
more a reason, we suspect, is that the commercial market-
ili Yn osgftion vagal yee ages be 2 Me lignes very
iti ich lift that material into the area of
First Amendment protection.
7 J McRae, in fact, for this reason set aside the jury convic-
tion of co-defendants and ordered a new trial under pre-Miller
ee ee ee oe
defendants tried to the jury and those who opted for trial to the
court. The jury had been charged only according to Miller standards,
ee ee eee ee ow ee Caer
a Sgn
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
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 at 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,
nor the trial judge’s consideration of the evidence, were ad-
versely affected by the fact that the case was tried upon the
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.
II
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 witi 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 ac-
quitted 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
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 proceeeding
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
‘ “It has, of course, long been the rule that consistency in verdicts
or judgments 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 a 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).
— A-10 —
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 subdistribu-
tion 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. Shif-
frin’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 immateral that Shiffrin was not himself charged
in the indictment; he was named as an unindicted co-con-
spirator 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
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 con-
spirators, 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.
— A-11 —
Allied with the claim of insufficiency of the evidence is the
claim of several of the defendants that not one but several con-
spiracies were shown because the proofs indicated only individ-
ual, isolated agreements to acquire and display the film, rather
than the single, unified conspiracy, which appellants claim is
necessary to their joint trial and conviction. Essentially the de-
fendants 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 con-
glomeration 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 and
423 U.S. 480 (1975). If anything, the conspiracy here alleged
and proved has a singular unity in its confinement to the dis-
tribution in interstate commerce of but one film. It is apparent
that by narrowly describing the conspiracy, many of the legiti-
mate apprehensions of injustice reflected in Kotteakos were
avoided. As the trial court noted in its findings of fact:
Because there are a limited number of copies of the film,
it is understood and agreed by those members of the dis-
tribution 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-distribu-
er
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), ap-
peal after remand, 467 F. 2d 1032 (7th Cir. 1972), cert. de-
— A-12 —
nied, 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.”®
I
Appellants also claim that the acquittal of Sherpix, Art The-
atre Guild, and sub-distributor Gordon Craddock and Crad-
dock 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 Dis-
trict of Tennessee are those of Sherpix, Inc., Art Theatre Guild,
Inc., Gordon Craddock and Craddock Films, Inc.” The 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 allega-
tions. More fundamentally, however, we do not view the ac-
quittal 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 con-
victed on substantive counts which formed the basis of the
overt acts alleged to have been committed by them in the con-
spiracy count.
We know of no rule which obliges a trier of fact to disre-
gard the evidence relating to a defendant who has been ac-
quitted of a particular crime in the trial of a co-defendant. As
® It might be that the defendants, or some of them, were equally
guilty of conspiring to distribute other obscene films and that con-
duct was also a part of the “School Girl” conspiracy. That, however,
need not concern us here. Defendants could not be injured if the
government elected to confine itself to the narrower aspects of a sin-
gle conspiracy.
— A-13 —
earlier mentioned, the rule in Williams, supra, relied upon by
defendants, is not a rule of evidence but of sufficiency. There-
fore, 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 au-
thorized employees caused ‘School Girl’ to be shipped in inter-
state commerce to Memphis, Tennessee (Western District of
Tennessee) on or about March 1, 1972.” Shiffrin’s testimony
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 Mem-
phis to appellant Allied Film Exchange in Detroit, and again
on June 5, 1972, Gordon Craddock, at the direction of Shif-
frin, caused a print of the movie to be shipped by interstate
commerce to Memphis and subsequently to Springdale, Ar-
kansas, from Memphis. Venue for the conspiracy count was
properly laid in the Western District of Tennessee. Hyde v.
United States, 225 U.S. 347, 365-67 (1913); Rule 18, Fed.
R. Crim. P.
Closely allied to the foregding argument is the claim that
the various defendants were unfairly tried in Memphis because
the allegedly puritanical local standards of that community sub-
jected 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 film. 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
tha community standards of other localities in which they might
conceive public attitudes to be more permissive. In Art Theatre
— A-14—
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 con-
spiracy 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 ob-
scenity offense is multistate in its scope, the community stand-
ards of the locality of trial, not some “hypothetical and unas-
certainable” 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 knowl-
edge of the propensities of a “reasonable” person in other
areas of the law.
* * *
The result of [Miller v. California and companiion
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 commu-
nity or vicinage from which he comes in deciding what
conclusions “the average person, applying contemporary
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 dis-
trict were available to serve on the panel which tried pe-
titioners, it would be the standards of that “community”
upon which the jurors would draw.
41s US. at 104, 105-06.
— A-15 —
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 contemplates
that persons guilty of substantive offenses which overlap ju-
dicial districts subject themselves to the application of varying
local standards, depending upon the locality of trial, and we
see no reason to devise a different rule for multistate conspir-
acies:
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 application 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
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 standard,
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 unreasonable 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
— A-16 —
not in another, and, in all probability, that is true.
But communities throughout the Nation are in fact
diverse, and it must be remembered that, in cases
such as this one, the Court is confronted 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 trie¢ 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 pre-
vailing standards of New England, to which the trial judge re-
plied, “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 evideace, 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 at this stage, but see Fed. R. Evid.
103(a)(2), we nevertheless read Hamling as leaving such de-
cisions largely to the discretion of the trial judge,!° a discretion
which we find was not abused under the circumstances here.
10 After holding that the trier of fact in a federal obscenity prose-
cution should draw upon the community standards of the vicinage
of trial, Hamling noted:
(bJut this is not to say that a district court would not be at lib-
erty to admit evidence of standards existing in some place out-
side of this particular district, if it felt such evidence would
assist the jurors in the resolution of the issue which they were
to decide.
418 US. at 106.
— A-17 —
IV
Appellants Sandy and Friedlander particularly complain that
the evidence was insufficient to uphold the district court’s find-
ing 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 communities which were a part of
the evidence. There was proof that some of the appellants
handled other sexually explicit films for Sherpix. There was evi-
dence that, as part of his sales pitch, Shiffrin 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.11 While some X-rated
11 Although Sandy asserts that there is no evidence that an X-
rating generally contemplates sexually explicit material, we find appli-
cable to the trial judge’s role in non-jury cases the same observations
we made with respect to jury’s general knowledge in United States
V. Jones, 580 F. 2d 219 (6th Cir. 1978).
While Wigmore notes that “[t]he range of [a jury’s] general
knowledge is not precisely definable,” [9] Wigmore [on Evi-
dence] § 2570 at 546 [(3d ed. 1940)], “the scope of this doc-
trine is narrow; it is strictly limited to a few matters of elemental
— A-18 —
films may not be obscene, it asks too much of credulity to expect
that under the circumstances 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 de-
gree of scienter.
Vv
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
four-pronged test of Barker v. Wingo, 407 U.S. 514 (1972),
applied here, would produce a holding of constitutionally im-
permissible delay, and we find none.
The remaining allegations of error are mostly variations of
those already discussed. We find no merit in them.
Affirmed.
experience in human nature, commercial affairs, and everyday
life.” Id. at 544. This category of fact is not so much a matter
of noticing facts outside the record as it is a matter of the
communication value of the words used, which can only be
understood in the light of the common experience of those who
employ them. See generally K. Davis, Administrative Law Text
§ 15.06 at 305 (3d ed. 1972).
Id .at 222. The trial court did not err in its understanding of the term,
“X-rated.”
— A-19 —
APPENDIX B
In the United States District Court
For the Western District of “Tennessee
Western Division
United States of America, )
Plaintiff,
99 | No. CR-73-45
Paul David Gerber, et 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; Amer-
ican International Pictures Exchange of Washington, D.C., Inc.;
Abbott Morton Swartz; Independent Film Distributors, 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 conducted
with regard to certain other individual and corporate co-defend-
ants in this cause. In that trial, the issue of obscenity was vig-
orously contested. Upon the basis of USA v. Marks, 520 F.2d
913 (C.A. 6, 1975), the standard for determining obscenity
was considered to be those standards enumerated in the Miller
— A-20 —
v. California, 413 U.S. 15 (1973) and other cases decided on
the same date, even though the alleged criminal conduct oc-
curred before Miller was announced.
With regard ‘o the defendants who agreed to this non-jury
trial, it was agreed that these defendants would not offer expert
proof upon the issue of obscenity, and that this issue would be
determined by the Court, based upon the Court’s viewing of the
movie 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 re-
versed 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 defendants and
all other defendants in the case were engaged in a conspiracy
to violate the laws pertaining to transportation of obscene mov-
ing 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
obscene movie entitled “School Girl.” There are fifteen defend-
ants included in this ruling. All but one of these defendants,
— A-21 —
Richard Lewis Miller, are individuals or corporations that were
engaged in the business of distributing motion picture 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 coun-
terparts, 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 Rich-
ard Louis Miller, who also used the name of 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 Mil-
ler, along with Paul David Gerber, owned all rights and inter-
est 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 Francisco, Cal-
ifornia, which payment included payment for a complete and
final transfer of all rights, title, and interest in and to the mo-
tion 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 agreement, agreed
not to use the name Paul David Gerber in the distribution of
said film in any connection as the maker of said motion picture
film.
— A-22 —
Prior to the time of the purchase of “School Girl” and sub-
sequent thereto, Sherpix engaged in the business of distribut-
ing 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. How-
ever, it had begun to concentrate on X-rated sexually 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 ex-
hibitor 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 di-
vides this amount according to an agreed percentage with the
prime distributor.
~_s
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 show-
ing 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-dis-
tributors 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 ex-
hibition 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 within
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 (interstate)
1 Saul Shiffrin was granted immunity and furnished much of the
information 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 testimony.
— fiat —
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.
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 Gordon
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 threatres in the States
— A-25 —
of Massachusetts, Connecticut, Vermont, and Maine. He did
receive it via interstate shipment.
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
notoriety 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 presi-
dent of the defendant Marvin Marvin Films, Inc., a New
York corporation. Their geographical area of sub-distribu-
tion 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 commerce.
The individual defendant Marvin Zide and the corporate
defendant Allied Film Exchange, Inc., sub-distributors of
the movie “Scheol 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 corporate
defendant American International Pictures Exchange of
Washington, D.C. served as sub-distributors who caused
the movie “School Girl” to be exhibited in Norfolk, Vir-
ginia. They did ship and receive a copy of the movie in
an exchange via interstate commerce with persons or com-
panies who were part of the distribution network.
— A-26 —
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 ne-
gotiated with Saul Shiffrin on behalf of Sherpix, Inc. to
serve as a sub-distributor for several other films, including
“The Stewardesses.” They did cause the exhibition 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 exchange via
interstate commerce with persons or companies 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 furtherance
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 defend-
ant Harry Brandt Booking Office, Inc. A booking agent serves
the movie industry in a different capacity from the sub-distribu-
tor. The booking agents provide a service to the exhibitors 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 distributor or sub-
distributor, but only for the purpose of bringing the distributor
or sub-distributor and the exhibitor together for further arrange-
ments. 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
“Scheol 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 arrangements between Sherpix and
Harry Brandt Booking Office were 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 theatres lo-
cated 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 interstate
commerce to Memphis, Tennessee (Western District of Ten-
nessee) 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.
— A-28 —
On or about June 15, 1972, Sherpix caused a print of “School
Girl” to be shipped by common carrier from Memphis, Ten-
nessee, to the sub-distributor 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, Tennes-
see.
Scienter
When the Indictment charges a conspiracy to transport an
obscene motion picture in interstate commerce, it is not nec-
essary for the government to prove that the conspirators had
actual 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,
917 (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 circumstantial
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 employment
in the motion picture distribution business that the general na-
ture and character of the motion picture film in question is one
depicting, representing, and describing actual or simulated sex-
ual 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 through-
out the motion picture industry used as a vehicle of communi-
cation, advertisement, and informational source, 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 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
article 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 re-
ported to be a Sherpix film. The article continues, making ref-
erence to “Adultery For Fun And Profit,” soon to be released,
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 fiim 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.
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
— A —
among heteros, homos and bestial lovers.” This motion picture
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 distribution
in the United States.
On October 20, 1971, and October 27, 1977, Weekly Variety
published full page advertisements for Sherpix, advertising the
film “House Of Wax” being distributed by it as a general re-
lease film. Said advertisements contained information blocked
off in an approximately three-and-one-half-inch vertical 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 instant case: Jerry Sandy, Ellis
Gordon, Manny Youngerman, John Glaus, Marty Zide, Abbott
Swartz, and Marvin Friedlander.
On November 3, 1971, Weekly Variety published a two-col-
umn headlined news article reporting the results of the move
festival at Amsterdam, Holland. Concerning the festival, 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.
— A-31 —
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 continues and
one column is continued on a second page. The second para-
graph of the article concerns the fact that the motion picture
film “School Girl,” distributed by Sherpix, had won the Amster-
dam Festival and had been seized by the New York Police De-
partment 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 exhibition of
the film “School Girl” distributed by Sherpix.
On September 27, 1972, Weekly Variety published a short
news interest 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 show-
ing male and female participants in sexual intercourse without
showing actual penetration, and depicts lesbianism with c:al
contact clearly showing.
Ellis Gordon sub-distributed, for and on behalf of Sherpix,
the motion picture film entitled “The Stewardesses” to theatres
— A-32 —
for 47 separate exhibitions between March 5, 1971, and No-
vember 2, 1972.
Marvin Friedlander, by and throug: 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 picture
film entitled “The Stewardesses” to theatres for 67 separate ex-
hibitions, 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 between
February 24, 1971, and March 21, 1972. ‘
Abbott Morton Swartz, by and through Independent Film
Distributors, Inc., sub-distributed for and on behalf of Sherpix,
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 Company,
Inc., sub-distributed for and on behalf of Sherpix, the motion
picture film entitled “The Stewardesses” to a theatre for ex-
hibition between January 5, 1972, and February 15, 1972.
John O. Glaus sub-distributed, for and on behalf of Sher-
pix, Inc., to theatres the motion picture film entitled “The
Stewardesses” for 54 separate exhibitions between March 13,
1971, and September 11, 1973.
an ht +
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 Com-
pany, 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 showing actual
contact and penetration. The movies were “Mona,” “Adultery
for Fun and Profit,” “History of the Blue Movie,” and “Holly-
wood Blue.” |
On June 21, 1972, in the movie advertisement section of
The Detroit Free Press, there was published an advertisement
measuring approximately 74% by 4% 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 advertise-
ment contains the words in bold print, “How Much Mischief
Can A Girl Get Into . . . If She Really Tries!” The advertise-
ment 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 pub-
lished 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 that it does not show the film to be X-rated, but has
2 This ad was used in various forms throughout the period of dis- ©
tribution of the movie. The art work and format were obtained by
Sherpix on or before November 10, 1971.
—
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% by
2% inches and carried the additional notation that it was play-
ing 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%-
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 news-
paper published a movie advertisement measuring 2 by 4 inches
advertising that the motion picture film “School Girl” was be-
ing 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 Ad-
mitted.” The advertisement shows the motion picture film
“School Girl” as being exhibited with another motion picture
film entitled “Peddlers of Sin.”
a eG =
Obscenity
As heretofore indicated when this non-jury phase of the case
was tried in January 1976, the issue of obscenity was submitted
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). However, 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 persons 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 opinion pro-
vides:
Miller held:
“The basic guidelines for the trier of fact must be: (a)
whether ‘the average person, applying contemporary com-
munity 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, sex-
ual conduc? specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.” 413 US.
at 24.
Under part (b) of the test, it is adequate if the statute, as
written or as judicially construed, specifically defines the
— A-36 —
sexual conduct, depiction of which is forbidden. The Court
in Miller offered examples of what a State might constitu-
tionally choose to regulate:
“(a) Patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simu-
lated.
“(b) Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of
the genitals.” 413 US., 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 underground
newspaper. This leads to a series of sexual episodes which in-
clude 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 tele-
phone, 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 be-
tween the school girl and her boyfriend is shown. There is a
similar episode portrayed between the school girl’s female room-
mate 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 partici-
pants during the sexual encounters.
— A-37 —
Summary and ( ‘onclusion
This Court concludes that the defendants Ellis Gordon, Mar-
vin Friedlander; Marvin Films, Inc.; Martin Zide; Allied Film
Exchange, Inc.; Jerome Sandy; American International Ex-
change of Washington, D.C., Inc.; Abbott Morton Swartz; In-
dependent Film Distributors, Inc.; Emanuel Youngerman; M.
Y. Film Company, Inc.; and John O. Glaus entered into a
conspiracy with Saul Shiffrin; Sherpix, Inc.; Art Theatre 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 carrier
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 this multi-state conspiracy at least
three overt acts included in the Indictment were committed
by members of the conspiracy in the Western District of Ten-
nessee.
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.
This 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 “ourt 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
and R. L. Mills are all one and the same person, the Court
concludes that Miller’s participation in the distribution of the
— A-38 —
movie “School Girl” terminated with its outright sale in Cali-
fornia. He retained no royalties or other forms of participation
in the profits from the exhibition of it. The government argues
that Miller had a continuing interest in its success because that
would enhance the value of future productions under the name
R. L. Mills and the other identifying phases of the credits; how-
ever, there is no proof to support the argument that other mov-
ies 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 deter-
mined 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 dis-
tribution conspiracy shown by the proof. Booking agents func-
tion for a limited purpose in the distribution and exhibition of
a movie. They bring the distributor and the exhibitor together
for a flat fee, not a percentage of the receipts. They do not
assume responsibility for the manner and means of the de-
livery and forwarding of a movie shipped to an exhibitor. In
the instant case the proof applicable to them is minimal, and
in the opinion of the Court does not establish that they know-
ingly joined the continuing distribution conspiracy. Therefore
the Court concludes that Lou Wolff and Harry Brandt Book-
ing 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
proof reflects that all individual defendants were actively and
openly engaged in the movie industry. Substantial phases of
— A-39 —
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 crim-
inal 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 sentencing
discretion without a pre-sentence investigation. Therefore, the
Clerk is directed to notify all defendants found guilty herein
that the sentencing hearing will be conducted in Courtroom
Number 2, United States Courthouse, Memphis, Tennessee, at
1:30 P.M., Friday, August 19, 1977.
ENTER: This 28th day of July 1977.
/s/ ROBERT M. McRAE, JR., Judge
United States District Court
— A-40 —
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
filing a Motion for New Trial to fifteen days from the date
hereof, in the event that any defendant wishes to file a Motion
for New Trial.
/s/ ROBERT M. McRAE, JR., Judge
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