Petition for Writ of Certiorari — ABC, Inc. v. United States

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

S12 10 Suptamme

¥ >~ULBRD

+ AUG 1 198

IN THE

SUPREME COURT OF THE UNITED STA Rggice of THE SUEAEK

October Term, 1991 os

ABC, INC., d/b/a ABC BOOKS, INC.;

GENERAL VIDEO MIDWEST, INC.; and

DAVID SWANSON,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

_ PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Arthur M. Schwartz

Bradley J. Reich

Michael W. Gross

Cindy D. Schwartz

ARTHUR M. SCHWARTZ, PC.

Dominion Plaza

600 - 17th Street, Suite 2250S

Denver, Colorado 80202

(303) 893-2500

Counsel for Petitioners

Counsel of Record

OF COUNSEL:

Douglas L. Kluender

HEALY WIELAND LAW FIRM

1141 H Street

P.O. Box 83104

Lincoln, Nebraska 68501-3104

(402) 476-2847

Terence P. Gillespie

Geena Cohen

GENSON, STEINBACK & GILLESPIE

53 West Jackson Blvd., Suite 1420

Chicago, Illinois 60604

(312)726-9015

QUESTIONS PRESENTED FOR REVIEW

1. Whether the federal sentencing guidelines are applica-

ble under circumstances where the defendants were convicted

of an ongoing offense initiated before the guidelines went into

effect, but acquitted of all alleged criminal activity occurring

after the effective date of the guidelines.

2. Whether the imposition of a two level increase for

obstruction of justice is warranted pursuant to Section 3C1.1

of the federal sentencing guidelines where a defendant's use of

an alias was neither intended to impede, nor actually resulted

in any hindrance to, the administration of justice.

3. Whether the imposition of a four level increase pur-

suant to Section 3B1.1 of the federal sentencing guidelines for

‘the role in the offense is appropriate based solely upon a

defendant's status as an officer of the co-defendant corpora-

tions and absent specific findings regarding the size of the

criminal organization and the defendant’s degree of respon-

sibility therein.

4. Whether the evidence adduced at trial is sufficient to

sustain a corporate defendant's conviction for conspiracy to

transport obscene material through interstate commerce

where the substantive counts in which it was charged and the

overt acts alleged in furtherance of the conspiracy did not

involve obscenity, but rather, established only an agreement to

transport constitutionally protected speech material.

|Note: Petitioner Swanson reserves the right to argue Ques-

tion 5 on the merits in the event certiorari is granted, but

does not include Question 5 among the reasons for granting

certiorari. |

5. Whether the evidence adduced at trial is sufficient to

sustain a defendant's convictions where the government failed

to establish the defendant’s involvement in any alleged crimi-

nal activity beyond his status as a corporate officer of the co-

defendant corporations.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .......... i

Peers COP BATTERIE A won cece ccs cwcvekees iv

CY cn ce wake neue be en SeCRD MD 2

EE IE 50 ss owls cole ce oe celes dace 2

yr tg let 4 8g). 6. rae role 2

REASONS FOR GRANTING THE WRIT

I. THE FEDERAL SENTENCING GUIDELINES

If.

Il.

ARE NOT APPLICABLE UNDER CIRCUM-

STANCES WHERE THE DEFENDANTS WERE

CONVICTED OF AN ONGOING OFFENSE INI-

TIATED BEFORE THE GUIDELINES WENT

INTO EFFECT, BUT ACQUITTED OF ALL

ALLEGED CRIMINAL ACTIVITY OCCURRING

AFTER THE EFFECTIVE DATE OF THE

CFUEENED 556s 64 ens decane este ee

THE IMPOSITION OF A TWO LEVEL

INCREASE FOR OBSTRUCTION OF JUSTICE

PURSUANT TO SECTION 3C1.1 OF THE

FEDERAL SENTENCING GUIDELINES IS

NOT WARRANTED WHERE A DEFENDANT'S

USE OF AN ALIAS WAS NEITHER INTENDED

TO IMPEDE, NOR ACTUALLY RESULTED IN

ANY HINDRANCE TO, THE ADMINISTRA-

TIES GEE OEMS ois ns cues ke veaeea eee eee

THE IMPOSITION OF A FOUR LEVEL

INCREASE PURSUANT TO SECTION 3B1.1 OF

THE FEDERAL SENTENCING GUIDELINES

FOR ROLE IN THE OFFENSE IS INAPPROPRI-

ATE WHEN BASED SOLELY UPON A DEFEN-

DANT’S STATUS AS AN OFFICER OF THE CO-

DEFENDANT CORPORATIONS AND IN THE

ABSENCE OF SPECIFIC FINDINGS REGARD-

ING THE SIZE OF THE CRIMINAL ORGANI-

ZATION AND THE DEFENDANT'S DEGREE

OF RESPONSIBILITY THEREIN .............

IV. A CORPORATE DEFENDANT'S CONVICTION

FOR CONSPIRACY TO TRANSPORT OBSCENE

MATERIAL THROUGH INTERSTATE COM-

MERCE CANNOT BE SUSTAINED WHERE

THE SUBSTANTIVE COUNTS IN WHICH IT

WAS CHARGED AND THE OVERT ACTS

ALLEGED IN FURTHERANCE OF THE CON-

SPIRACY DID NOT INVOLVE OBSCENITY,

BUT RATHER, ESTABLISHED ONLY AN

AGREEMENT TO TRANSPORT CONSTITU-

TIONALLY PROTECTED SPEECH MATERIAL . 21

EE ee 24

TABLE OF AUTHORITIES

CASES

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

Roaden v. Kentucky, 413 U.S. 496 (1973) .........

United States v. American Grain & Related Indus-

tries, 763 F.2d 312 (8th Cir. 1985) ...........

United States v. Bermingham, 855 F.2d 925 (2nd

CE Reece hee eon au uaee reese tee eae een

United States v. Cangiano, 491 F.2d 906 (2nd Cir.),

cert.den., 419 U.S. GO4 (1974) «oo. ccc cccce ss

United States v. Carroll, 893 F.2d 1502 (6th Cir.

United States v. Cimini, 427 F.2d 129 (6th Cir.),

cert.den., 400 U.S. 911 (1970) ...........cece:

United States v. Cohen, 583 F.2d 1030 (8th Cir.

BE tear gee a aE ee ek is ae de ees

RN i Se ene es et ne Ee

United States v. Fells, 920 F.2d 1179 (4th Cir.

ga RPEOED AED oe Wiig Nas Ryoho Np teeny Ys oh oN SEA gv oe a

United States v. Friedman, 506 F.2d 511 (&th Cir.),

cert.den., 423 U.S. 855 (1975) ........ ccc eee

United States v. Fuller, 897 F.2d 1217 (1st Cir.

oe cos alc pital ete rate ea ola os

United States v. Lanese, 890 F.2d 1284 (2nd Cir.

BN eo co wa asa ha os aaa ie na re

United States v. Lee, 886 F.2d 998 (Sth Cir. 1989) .

United States v. McCrary, 887 F.2d 485 (4th Cir.

eR Oat oe a eae cee ie rie eee eins

United States v. Manthei, 913 F.2d 1130 (5th Cir.

SUE an a alatcta ea en SO rh Rh Pe MIA tar ty ee

Page

9,21

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

reud on other grounds, 430 U.S. 188 (1977) .... 23

United States v. Murillo, 933 F.2d 195 (3rd Cir.

RR ee ar ree ee 17.18

United States v. Peraino, 645 F.2d 548 (6th Cir.

RE RE RES AEA hea Parry byt kg pe 9,10,

21,22

United States v. Petit, 903 F2d 1336 (10th Cir).

cert.den., U.S.__,111S. Ct. 197. 112 L.Ed.2d

NE A epee or et One hk ae yh ea 17

United States v. Silverman, 889 F.2d 1531 (6th Cir.

ele yin A eh pat on, © Sigma ge ia fg la 18

United States v. Tetzlaff, 896 F.2d 1071 (7th Cir.

(| Te ie eee en A Se ons ah at LS cate ge 15.17

United States v. Walker, 885 F.2d 1353 (8th Cir

| Bia pe little oe os I Bazan ia Re ar 6

United States v. White, 869 F.2d 822 (5th Cir),

cert.den., 490 U.S. 1112(1989)........2<...... 7

United States v. Williams, 891 F.2d 921 (D.C. Cir

DER rer. ee er ee ke 15.17

United States v. Wilson, 887 F.2d 576 (5th Cir.

1989), per curiam, 904 F.2d 234 (1990) ........ 12

United States v. Vasquez, 874 F.2d 250 (Sth Cir.

NE re I et nO Re Ne ir BP ORE FT alot 15

United States v. Zuideveld, 316 F.2d 873 (7th Cir.).

cert.den., 376 U.S. 916 (19G4) ...........cuce 24

United States v. Zweber, 913 F.2d 705 (9th Cir.

Ean RSP Iirtiae Sev Rte he aa aah eo Melman i siya Ll ae, See 17

Universal Amusement v. Vance, 445 U.S. 308

RUS Sate ar et. ota es dae «tae Pe 11

OTHER AUTHORITY

Federal Sentencing Guidelines, Section 2G3.1 2

Federal Sentencing Guidelines, Section 3B1.1 cc

16,18,19,20

Federal Sentencing Guidelines, Section 38C1.1 0... 2,5,

12.13.14

U.S. Const... Ex Post Facto Clause ................ 7.11

U.S. Const.. First Amendment _................... 9.10,

11,24

U.S. Const., Fifth Amendment .................. 16

U.S. Const., Fourteenth Amendment ............. 16

18 U.S.C. Sectiont 75 coca a eee eee os cree os 2.4,

. 7,22

18 U.S.C. Section: 340s oa os sce 2,4,

18 U.S.C. Section Saas. ee ee eae ee isso 4

18 U.S.C. Section SUBE sie eee bas oe eeses 6

28 U.S.C. Section SOQ osc c eae eee ra ee ees 2.6

28 U.S.C. Section LSE). se ee cee ees 2

28 U.S.C. Section 128). 45 Peres «9 « 2

Rule 10, Supreme Court Rules ..0.......... te. 24

Rule 29.1, Supreme Court Rules ......... caret, 1

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

ABC, INC., d/b/a ABC BOOKS, INC; =

GENERAL VIDEO MIDWEST, INC.; and

DAVID SWANSON,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

COME NOW the-Petitioners, ABC, Inc., d/b/a ABC

Books!, General Video Midwest, Inc.*, and David Swan-

son, by and through their attorneys, and hereby petition

this Honorable Court to issue a writ of certiorari to

review the judgment and opinion entered by the United

States Court of Appeals for the Eighth Circuit in the

above-entitled action.

1 Petitioner ABC, Inc., dba ABC Books, Inc. has no parent com-

panies or subsidiaries to list pursuant to Rule 29.1 of the Supreme

Court Rules.

2 Petitioner General Video Midwest, Inc. has no parent companies or

subsidiaries to list pursuant to Rule 29.1 of the Supreme Court

Rules

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Circuit has not been reported to date, but is reprinted in

the Appendix to the Petition for a Writ of Certiorari

(hereinafter “Appendix”), at App. 1. The order denying a

Petition for Rehearing and Suggestion for Rehearing En

Banc is also reproduced in the Appendix, at App. 32.

JURISDICTION

Petitioners seek review of the judgment and opinion

of the United States Court of Appeals for the Eighth

Circuit, entered on April 26, 1991, which affirmed Peti-

tioners’ convictions entered by the United States Dis-

trict Court for the District of Nebraska on April 30,

1990. See Appendix, App. 1. Thereafter, a timely filed

Petition for Rehearing and Suggestion for Rehearing En

Banc was denied on June 3, 1991. See Appendix, App. 32.

This Petition for Certiorari was filed within ninety days

thereof.

The Eighth Circuit’s decision is a final judgment

since it affirmed the district court's judgment which was

final within the meaning of 28 U.S.C. Section 1291. Juris-

diction of this Court to review the judgment and opinion

of the Eighth Circuit in this criminal action is invoked

under 28 U.S.C. Section 1254(1).

STATUTORY PROVISIONS

The pertinent portions of Title 18 U.S.C. Sections 371

and 1462, together with the relevant provisions of the

Federal Sentencing Guidelines Manual, Sections 2G3.1,

3B1.1 and 3C1.1, promulgated by the United States Sen-

tencing Commission pursuant to 28 U.S.C. Section 994,

are set forth verbatim in the Appendix hereto, at App.

35-App. 52.

STATEMENT OF THE CASE

In or about April, 1987, the Lincoln Police Depart-

ment, in conjunction with the Federal Bureau of Inves-

tigation, initiated an investigation into the interstate

transportation of allegedly obscene material in Lincoln,

Nebraska. The target of the investigation in the instant

case was “Cinema X,” an adult establishment located in

the City of Lincoln. Cinema X is owned and operated by

Petitioner ABC, Inc., a foreign corporation licensed to

conduct business and doing business in Nebraska. Peti-

tioner David Swanson was president of said corporation

and Steve Brooks, a former co-defendant, was employed

by ABC, Inc. as the manager of Cinema X.

The Lincoln Police Department instigated its covert

investigation of Cinema X on or about April 10, 1987.

During the course of the investigation, from April 1987

until May 1988. Officer Jerry Lowe of the Lincoln Police

Department periodically patronized Cinema X in an

undercover capacity. Throughout the period of the inves-

tigation, Officer Lowe rented a total of 12 videocassette

tapes. Each of the videotapes selected by Officer Lowe

was a special order not regularly stocked in the store.

Several” of these videotapes were ordered for Officer

Lowe, by Brooks, from Petitioner General Video Mid-

west, Inc. General Video Midwest is an Illinois corpora-

tion of which Swanson was also an officer. Notably, only

three of the twelve videotapes rented by Officer Lowe

were actually purchased and selected for prosecution in

this case.

At the conclusion of the investigation, a four count

indictment was filed in United States District Court for

the District of Nebraska against Petitioners, as well-as

former co-defendant Brooks, on January 31, 1989.

Jurisdiction was conferred upon the district court pur-

suant to 18 U.S.C. Section 3231. Count I of the indictment

charged the two corporations and the two individuals

with conspiring to transport obscene material in inter-

state commerce in violation of 18 U.S.C. Section 371.

Counts II and IV charged each of them with substantive

offenses involving the use of an express company or

other common carrier to transport obscene material in

violation of 18 U.S.C. Section 1462. Count III] charged

only Petitioners ABC, Inc. and Swanson, along with

Brooks, with an additional substantive offense involving

the violation of 18 U.S.C. Section 1462.

Prior to trial, Brooks entered into a plea agreement

with the Government. Pursuant to the agreement, ali of

the charges pending against Brooks in the instant case

were dismissed and he agreed to cooperate in testifying

as a witness for the Government in the trial of the

Petitioners herein.

A jury trial was commenced on December 18, 1989,

the Honorable Warren K. Urbom presiding. At trial,

Brooks testified that the videotapes selected by Officer

Lowe were not regularly stocked in the store and had to

be special ordered. At no time did Swanson participate

in perfecting these special orders. Officer Lowe corrobo-

rated Brooks’ testimony, stating that at no time did he

recall hearing Swansons name mentioned in connection

with the ordering or shipping of the subject videotapes.

At the conclusion of the Government’s case, Peti-

tioners’ motion for a judgment of acquittal on the basis

of insufficient evidence was summarily denied by the

trial court. Subsequent renewals of this motion were

similarly denied. See Appendix, App. 6. Petitioners were

convicted of Counts I and III of the indictment and

acquitted of all remaining counts. However, the trial

court vacated the conviction as to General Video Mid-

west on Count III because it was not charged in that

count of the indictment. See Appendix, App. 7.

On April 27, 1990, Petitioners were sentenced under

the Sentencing Reform Act of 1984, over their objection

that the federal sentencing guidelines were inapplicable

to Petitioners’ offenses of conviction because they had

been acquitted of all alleged criminal activity occurring

after the effective date of the guidelines. See Appendix,

App. 10. Overruling their objection, the trial court sen-

tenced the Petitioner corporations accordingly. assessing

a fine against ABC, Inc. in the amount of $60,000 as to

each of the Counts I and III, and discharging it as to the

remaining counts of which it was acquitted. See Appen-

dix, App. 23. General Video Midwest was fined $80,000

as to Count I, and discharged as to the remaining counts.

See Appendix, App. 25. In sentencing Petitioner Swan-

son, the trial court increased Swansons guideline range

by four levels pursuant to Section 3B1.1 of the federal

sentencing guidelines for role in the offense based upon

Swansons status as president of the convicted corpora-

tions. See Appendix, App. 10. The court further enhanced

Swansons guideline range by two levels pursuant to

Section 3C1.1 for obstruction of justice based upon his

use of an alias. See Appendix, App. 10. Accordingly, Peti-

tioner Swanson was sentenced to a 24-month term of

imprisonment on each of the Counts | and III. to run

concurrent as to each count. In addition, the trial court

ordered Swanson to pay a fine in the amount of

$46,861.71, and discharged him as to the remaining

counts of which he was acquitted. See Appendix, App. 27.

The final orders of judgment were entered on April 30.

1990. See Appendix, App.23 - App. 31.

”)

Petitioners appealed their convictions to the United

States Court of Appeals for the Eighth Circuit. On April

26, 1991, the Eighth Circuit affirmed Petitioners’ convic-

tions and sentences in all respects. See Appendix, App. 1.

Petitioners timely filed a Petition for Rehearing and

Suggestion for Rehearing En Bane which was denied on

June 3, 1991. See Appendix, App. 32. However, the Eighth

Circuit granted Petitioners’ motion to stay the issuance

of the mandate pending the filing of the within Petition.

See Appendix, App. 33 - App. 34.

REASONS FOR GRANTING THE WRIT

THE FEDERAL SENTENCING GUIDELINES ARE

NOT APPLICABLE UNDER CIRCUMSTANCES

WHERE THE DEFENDANTS WERE CONVICTED

OF AN ONGOING OFFENSE INITIATED BEFORE

THE GUIDELINES WENT INTO EFFECT, BUT

ACQUITTED OF ALL ALLEGED CRIMINAL

ACTIVITY OCCURRING AFTER THE EFFECTIVE

DATE OF THE GUIDELINES

Pursuant to 28 U.S.C. Section 994, the United States

Sentencing Commission promulgated detailed guidelines

prescribing sentences for offenders convicted of federal

crimes. The federal sentencing guidelines took effect

automatically on November 1, 1987, and are applicable to

offenses committed thereafter. See 18 U.S.C. Section

3551. As a general principle of law, the guidelines are

also applicable to certain ongoing offenses initiated

before November 1, 1987, but continuing in existence

after that date. In United States v. Walker, 885 F.2d 1353

(8th Cir. 1989), for example, the Eighth Circuit held that

since conspiracy is a continuing offense, the trial court

may sentence a conspirator under the sentencing

guidelines for a conspiracy that was formed before the

guidelines took effect, if the conspiracy continued after

the effective date of the guidelines. See also, United

States v. Lee, 886 F.2d 998 (8th Cir. 1989). Under such

circumstances, application of the sentencing guidelines

cannot be said to violate the Ex Post Facto Clause of the

United States Constitution. United States v. White, 869

F.2d 822, 826 (5th Cir), cert.den., 490 U.S. 1112 (1989).

However, the issue in the instant case is whether the

sentencing guidelines are applicable to a conviction for

conspiracy to transport obscene material initiated before

November 1, 1987 and which, by virtue of the jury's

unequivocal findings, terminated no later than August 3,

1987, months before the guidelines took effect. Specifi-

cally, Count I of the indictment alleged a conspiracy

among Petitioners from “April 10, 1987 and continuously

thereafter until. . . May 12, 1988... .” Nine overt acts

were alleged to have been committed in furtherance of

the conspiracy. The first seven acts allegedly occurred no

later than August 38, 1987, before the guidelines took

effect. The only two overt acts alleged to have taken

place after November 1. 1987 were those acts which

served as the basis for the substantive offense charged in

Count IV of the indictment. of which Petitioners were

acquitted.

More particularly, the last two overt acts allegedly

committed in furtherance of the conspiracy alleged that

on or about May 12, 1988, a videocassette tape entitled

“Bi-Heat Vol. 10” was delivered to Steven Brooks, who, in

turn, sold the videotape to an undercover officer in viola-

tion of 18 U.S.C. Section 371. Moreover, the on/y substan-

tive count that occurred after the effective date of the

guidelines was Count IV, which specifically charged,

inter alta:

B. The above violation was committed and car-

ried out in the course of and in furtherance of

the conspiracy set forth in Count I of this

Indictment, while the defendants named

therein were members of the conspiracy.

The jury found Petitioners not guilty of Count IV,

thus, specifically rejecting the Government's express

allegation that the acts charged in Count IV were “car-

ried out in the course of and in furtherance of the

conspiracy set forth in Count I... .” The trial court,

nevertheless, ruled that the conspiracy continued after

the effective date of the sentencing guidelines.

Contrary to the Eighth Circuit’s decision in the

instant case, the fact that the jury rejected the Govern-

ment’ allegations that the last two overt acts were

illegal and part of the conspiracy is crucial. In an analo-

gous case, the Ninth Circuit found that a defendant

convicted of voluntary manslaughter, but acquitted of

first degree murder, should not have been sentenced on

the basis of the district court’s finding that the defen-

dant’s- conduct exhibited an intent to kill or do serious

bodily harm, stating:

We would pervert our system of justice if we

allowed a defendant to suffer punishment for a

criminal charge for which he or she was acquit-

ted... . A sentencing court should not be allowed

to circumvent thle] statutory directive |that vol-

untary manslaughter is less serious than

murder| by making a finding of fact—under any

standard of proof—that the jury has necessarily

rejected by its judgment of acquittal. United

States v. Brady, 928 F.2d 844, 851 (9th Cir,

March 18,1991).

In the instant case, too, the jury’s determination that

Count IV, encompassing the two above-referenced overt

acts, was not illegal and not part of the conspiracy,

should not be circumvented by the trial court’s subse-

quent finding that the conspiracy continued after

August, 1987.

Moreover, the Eighth Circuit's decision in this case

is contrary to United States v. Davis, 718 F. Supp. 8

(S.D.N.Y. 1989), where the court determined that the

sentencing guidelines did not apply to a conspiracy

which began before November 1, 1987 and continued after

November 1, 1987, where the bu/k of the criminal activity

alleged took place before the effective date of the

guidelines. The instant case is far more compelling than

Davis. Unlike Davis, all of the alleged criminal activity

was found by a jury to have occurred prior to November

1, 1987. In addition, unlike Davis where the defendants

were convicted of a substantive count involving overt

acts occurring after November 1, 1987, Petitioners herein

were acquitted of the only substantive offenses alleged to

have occurred after November 1, 1987.

Equally as important is the fact that the alleged

conspiracy charged in the instant case involved speech

material presumptively protected by the First Amend-

ment. As eloquently articulated by the Sixth Circuit in

United States v. Peraino, 645 F.2d 548 (6th Cir. 1981):

The general rule that one who joins a conspiracy

at any time before it ends may be heid responsi-

ble for acts and agreements which took place

before he joined, e.g., United States v. Cimint,

427 F.2d 129, 130 (6th Cir), cert. denied, 400 U.S.

911. 91 S.Ct. 1387, 27 L.Ed.2d 151 (1970), does not

control when First Amendment rights are at

stake. In most cases the illegal purposes

of a federal conspiracy will be illegal in every

federal jurisdiction. However, when the agree-

ment alleged is one to distribute materials which

- constitute expression, the agreement may have

both legal and illegal purposes depending on

varying community standards. /d., at p. 551-552

(emphasis added).

As such, the government must prove “that a purpose of

the conspiracy, at the time the conspirator was a mem-

ber, involved a community, the standards of which were

violated by the film.” Jd., at p. 552.

Overlooking the distinctions enunciated by the Sixth

Circuit in conspiracy cases implicating First Amend-

ment rights, the Eighth Circuit in this case ruled that

even though Petitioners herein were found not to have

engaged in any criminal activity subsequent to

November 1, 1987, the guidelines were still applicable

because other acts, although not criminal, were com-

mitted by them after that date. See Appendix, App. 1.

However, the conspiracy alleged in Count I specifically

charged that Petitioners conspired to ship three obscene

videotapes in interstate commerce. Only one of those

films was found to be obscene and, hence, the remaining

two films were implicitly found by a jury to be protected

speech material under the First Amendment. Therefore,

any activity subsequent to the date of the shipment

involving the single obscene film, in order to be in fur-

therance of an agreement to transport obscene material,

would be dependent upon proof that material shipped

after November 1, 1987 was, in fact, obscene. Otherwise,

the activity would constitute overt acts in furtherance

not of an unlawful agreement, but of a perfectly proper

agreement to transport constitutionally protected

speech material.

However, pursuant to the Eighth Circuit's reasoning,

taken to its logical conclusion, as long as Petitioners

were in the business of distributing any presumptively

protected filmfare, a// of their actions would be consid-

ered in furtherance of an agreement to ship obscene

material by virtue of one film that was shipped on July

30, 1987 having been declared obscene. Such a result

would make one sale of an obscene film a restraint upon

any later sales involving any speech material, contrary

to this Court’s decision in Universal Amusement v. Vance,

445 US. 308 (1980). Thus, contrary to the Eighth Cir-

cuits decision, unless and until any acts of Petitioners

taken after November |, 1987 were taken in furtherance

of an agreement to transport a ‘lm that has been

adjudicated obscene, those actions cannot be said to have

been taken in furtherance of an agreement to transport

obscene material. Therefore, these acts could not be

considered as activity extending the existence of the

conspiracy charged in Count I past the effective date of

the guidelines.

Based upon the foregoing arguments” and

authorities, it is clear that the Eighth Circuit’s decision

in the instant case is contrary to the decisions of numer-

ous other federal courts and, further, is violative of

Petitioners’ fundamental rights of freedom of speech as

guaranteed to them by the First Amendment to the

United States Constitution. Moreover, the Eighth Cir-

cuit’s decision gives rise to crucial implications involving

constitutional constructions of the Ex Post Facto Clause,

as it relates to the sentencing guidelines, which have not

vet been addressed by this Honorable Court. Therefore,

the within Petition should be granted by this Court.

II.

THE IMPOSITION OF A TWO LEVEL INCREASE

FOR OBSTRUCTION OF JUSTICE PURSUANT TO

SECTION 3C1.1 OF THE FEDERAL SENTENCING

GUIDELINES IS NOT WARRANTED WHERE A

DEFENDANT’S USE OF AN ALIAS WAS NEITHER

INTENDED TO IMPEDE, NOR ACTUALLY

RESULTED IN ANY HINDRANCE TO, THE

ADMINISTRATION OF JUSTICE

Section 3C1.1 of the federal sentencing gvidelines

provides for a two level increase of the offense level “|ilf

the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of

justice during the investigation, prosecution, or sentenc-

ing of the instant offense ... ” See Appendix, App. 40.

Jurisdictions have been divided over the question of

whether such an increase of the offense level is war-

ranted when a defendant provides an alias to govern-

ment officials during the course of his criminal

proceedings.

In United States v. Wilson, 887 F.2d 576 (Sth Cir.

1989), per curiam, 904 F.2d 234 (1990), the Fifth Circuit

held that such an increase for use of an alias was

improper in the absence of evidence that the defendant

willfully impeded or obstructed the administration of

justice, or attempted to do so. However, the Eighth Cir-

cuit, holding to the contrary, has determined that a two

level increase for obstruction of justice may be appropri-

ate under those circumstances. See e.g., United States v.

Blackman, 904 F.2d 1250 (8th Cir. 1990) {affirming dis-

trict courts two level enhancement of sentence for the

defendant's use of an alias regardless of whether there

was actual prejudice to the government|.

In an effort to clarify for sentencing courts the

applicability of the obstruction of justice enhancement,

the Federal Sentencing Commission issued proposed

amendments to Section 3C1.1 which automatically went

into effect on November 1, 1990. In light of the amend-

ments, it becomes abundantly clear that it was not the

Commissions intent to increase a defendant’s offense

level for obstruction of justice based upon the use of an

alias. Specifically, the Sentencing Commission

announced that “providing a false name or identification

document at arrest, except where such conduct aciually

resulted in a significant hindrance to the investigation

or prosecution of the instant offense does not warrant an

enhancement for obstruction of justice.” See, Federal

Sentencing Guidelines Manual, Section 3C1.1, Applica-

tion Note 4(a) (Nov. 1990), reprinted in Appendix hereto,

at App. 40 (emphasis added).

In the instant case, the trial court increased Peti-

tioner Swanson’ offense level by two levels purportedly

for giving an alias to government officials at the time of

his arrest and during the course of the proceedings.

However, the trial court made absolutely no factual find-

ings that Swanson’ use of an alias constituted a mate-

rial falsehood intended to impede or resulting in a hin-

drance to the Government's investigation or prosecution

of this case. See Appendix, App. 10.

Although it is technically true that Petitioner Swan-

sons birth name is Michael Elmer Mohapp, what the

trial court failed to consider is the fact that Petitioner

“

has used the name “Swanson” for approximately 25 years

and, therefore, certainly was not utilizing that “alias” for

the purpose of attempting to impede the administration

of justice. To the contrary, Swanson voluntarily

surrendered in the instant case when the indictment

was returned, and perhaps more importantly, a// of Peti-

tioner’s criminal history utilized to calculate his

guideline range was listed under the name of “Swanson.”

In fact, the Government was fully aware of Petitioner's

true identity and that the purpose for his utilizing an

“alias” was to begin a new life following his horrifying

experiences in Viet Nam which were similar to those

experiences which caused countless Americans to desert

or flee to other countries, but for whom amnesty was

subsequently granted. See Appendix, App. 10. Clearly,

Swansons use of an alias was not intended to impede the

administration of justice, nor did it actually hinder the

judicial process in any way.

On appeal, the Eighth Circuit recognized that the

commentary to Section 3C1.1 directly contradicts its

prior holding in Blackman. However, because Petitioner

Swansons sentence of 24 months straddles the guideline

range, the Court regarded the issue as nonappealable

and, contrary to numerous other circuit courts, refused

to review the matter. See Appendix, App. 1.

Specifically, in the instant case, the trial court’s two

level increase for obstruction of justice increased Swan-

sons offense level from a level 15 to a level 17. This

enhancement increased the sentencing range from 18-24

months to 24-30 months. The 24-month sentence

imposed by the trial court, therefore, falls within the

ranges specified for both offense levels.

In United States v. Bermingham, 855 F.2d 925, 934

(2nd Cir. 1988), the Second Circuit engaged in a lengthy

and detailed discussion concerning the appealability of

overlapping sentences. The general rule articulated by

the Court is that “disputes about applicable guidelines

need not be resolved where the sentence falls within

either of two arguably applicable guideline ranges and

the same sentence would have been imposed under

either guideline range.” /d., at p.984 (emphasis added).

However, a situation in which the trial court sentences a

defendant at the low end of the sentencing range for the

applicable offense level, presents an exception to this

general rule, absent evidence that the sentence would

have been the same regardless of which sentencing

range was ultimately determined to be appropriate. /d.°

“In such situations, it obviously matters which guideline

range is applicable, and a judge entertaining such a view

could not conscientiously be satisfied that the same sen-

tence would have been imposed simply because it hap-

pened to fall at or near the high end of a lower, overlap-

ping guideline range.” /d., at p.935.

On the face of the record in the instant case, cer-

tainly it cannot be said that the sentence imposed by the

trial court against Petitioner Swanson would have been

the same under either guideline range. To the contrary,

the trial court intentionally sentenced Swanson at the

low end of the guideline range for the offense level

applied so as to distinguish his conduct from more

heinous crimes. See, Appendix, App. 10.

The foregoing authorities conclusively demonstrate

that the Eighth Circuit’s decision concerning the issue of

a sentencing enhancement for obstruction of justice

'The Eighth Circuit’s refusal to review guidelines issues involving

overlapping sentences where the defendant was sentenced at the

low end of the sentencing range for the offense level applied is

directly contrary to numerous other federal appellate court deci-

sions. See eg., United States v. Tetzlaff, 896 F.2d 1071 (7th Cir, 1990);

United States v. Willrams, 891 F.2d 921 (D.C. Cir, 1989); United States

vt. McCrary, 887 F.2d 485 (4th Cir 1989); and United States v.

Vasquez, 874 F.2d 250 (Sth Cir. 1989).

—

based upon the use of an alias is directly contrary to law

and conflicts with the decisions of other federal appellate

courts. The Eighth Circuit’s further refusal to review

Petitioner Swansons challenge to the applicable

guidelines range also conflicts with numerous other

federal appellate court decisions and is violative of Peti-

tioner’s rights of due process as guaranteed by the Fifth

and Fourteenth Amendments to the United States Con-

stitution. Therefore, the within Petition should be

granted.

Ill

THE IMPOSITION OF A FOUR LEVEL INCREASE

PURSUANT TO SECTION 3B1.1 OF THE FEDERAL

SENTENCING GUIDELINES FOR ROLE IN THE

OFFENSE IS INAPPROPRIATE WHEN BASED

SOLELY UPON A DEFENDANT'S STATUS AS AN

OFFICER OF THE CO- DEFENDANT

CORPORATIONS AND IN THE ABSENCE OF

SPECIFIC FINDINGS REGARDING THE SIZE OF

THE CRIMINAL ORGANIZATION AND THE

DEFENDANT’S DEGREE OF RESPONSIBILITY

THEREIN

Chapter 3B of the Federal Sentencing Guidelines

Manual permits a sentencing court to adjust the offense

level to accurately reflect a defendant's relative

culpability based upon his role in committing the

offense. More particularly, Section 3B1.1 allows the court

to increase the offense level proportionately based upon

a determination of whether the defendant was an

“organizer or leader” or “manager or supervisor” in

criminal activity that “involved five or more participants

or was otherwise extensive.” See Appendix, App. 38.

Although the sentencing guidelines were promul-

gated, at least in part, to promote uniformity in sentenc-

ing, the application of the adjustment for role in the

offense has varied depending upon the court’s interpreta-

tion of the term “offense.” The District of Columbia and

numerous other circuit courts have adopted the plain

meaniny of the term “offense” as referring to the “offense

of conviction.”* See, United States v. Williams, 891 F.2d

921, 925 (D.C. Cir. 1989) |requiring the sentencing court

“to look at the defendant's role in the offense of convic-

tion, not his role in any relevant aggravating conduct in

which he may have engaged.”| A minority of courts,

however, interpret the term more broadly to include both

the conduct of conviction and all relevant conduct. See

e.g., United States v. Fells, 920 F.2d 1179 (4th Cir. 1990).

The Sentencing Commission recently amended the

guidelines to conform to this latter interpretation.

However, the Third Circuit refused to apply the amend-

ments to offenses committed prior to November 1, 1990

because it was uncertain whether they were intended to

clarify the earlier language which it found unambiguous,

or to change the guidelines. See, United States v. Murillo,

933 F2d_195 (3rd Cir, May 8, 1991). Consequently, the

Third Circuit adopted what it termed a “middle ground”

approach. Pursuant to the Third Circuit’s approach, in

determining role in the offense for offenses committed

prior to November 1, 1990, a sentencing court “should

look both to the acts or omissions of the defendant that

satisfied the specific elements of the offense of conviction

' Other federal appellate courts adopting the DLC. Circuit's inter-

pretation of the term “offense” in ascertaining whether an adjust-

ment is appropriate based upon a defendant's “role in the offense.”

include: United States ». Zweber, 913 F.2d 705 (9th Cir, 1990); United

States v. Petit, 908 F2d 1336 (10th Cir), cert. den., U.S , Ba

S.Ct. 197, 112 L.Ed.2d 159 (1990); and United States v. Tetzlaff, 896

F.2d 1071(7th Cir. 1990)

and to those that brought about the offense of conviction.

... Id., at pp. 199-200, accord, United States v. Manthei,

913 F.2d 1130 (5th Cir. 1990).

In light of this division among the circuits, the trial

court's failure to make adequate findings of fact to sup-

port its four level increase in the instant case becomes

particularly acute. Based upon an examination of the

record in the instant case, it is impossible to determine

what conduct of Petitioner Swanson was considered in

increasing his offense level for role in the offense.

Specifically, the trial court in the instant case made

virtually no findings concerning Swansons actual role in

the interstate transport of the single videotape the jury

determined to be obscene, nor did the court make any

findings concerning the size or scope of the criminal

activity in the shipment of the videotape. Certainly the

interstate shipment of one obscene videotape ordered by

a police officer does not, in and of itself, constitute

extensive criminal activity sufficient to warrant a four

level increase. A single violation of law committed by a

corporation engaged in the otherwise lawful business of

selling presumptively protected speech materials (as

determined by the jury) should not render the entire

business an extensive criminal enterprise.

Moreover, the trial court failed to make a specific

finding as to whether Swanson was an “organizer or

leader” under Section 3B1.1(a), nor did the court attempt

to distinguish Swansons role in the criminal activity

from that of a “manager or supervisor” as set forth in

Section 3B1.1(b). See, United States v. Lanese, 890 F.2d

1284, 1293 (2nd Cir. 1989); and United States v. Silverman

889 F.2d 1531, 1540 (6th Cir. 1989) |both remanded for

findings of fact on number of participants under Section

3B1.1|. The trial court’s failure to make specific findings is

particularly troublesome in the instant case because the

evidence at trial established that Swanson had abso-

lutely nothing to do with the ordering, shipping, receiv-

ing, or selection of any videocassette tapes, let alone the

single videotape that was actually determined to be

obscene. Further evidence established that Swanson

only came to the store three times a year, and was only

actually observed on the premises on one occasion dur-

ing the course of the year-long investigation.

The trial court apparently based the four level

increase solely on the fact that Swanson was president of

the two corporations. See Appendix, App. 10. However,

the mere fact that Swanson held the title of president is

not sufficient to establish that he was a member of a

conspiracy. See, United States v. American Grain &

Related Industries, 763 F.2d 312, 318 (8th Cir. 1985).

Furthermore, given the specific distinctions contained in

Section 3B1.1, surely the titie of president, standing

alone, is insufficient to justify a four level increase. This

is strongly confirmed by Application Note 3 of the com-

mentary to Section 3B1.1 which lists the factors to be

considered in determining a defendant's role and expres-

sly states that titles are “not controlling” in “dis-

tinguishing a leadership or organizational role from one

of mere management or supervision.” See, Federal Sen-

tencing Guidelines Manual, Section 3B1.1, Application

Note 3 (Nov. 1990), reprinted in Appendix hereto, at App.

38. Notably, however, the trial court in the instant case

wholly failed to consider even one of the factors listed in

imposing the maximum increase. Indeed, no evidence

was introduced to establish that Swanson had a signifi-

cant role in the activities that formed the basis for the

convictions in Counts I and III.

The trial court also failed to make any specific find-

ings as to whether the criminal activity “involved five or

more participants or was otherwise extensive.” Section

3B1.1, Application Note 1, defines “participant” as “a

person who is criminally responsible for the commission

of the offense, but n-ed not have been convicted.” See,

Federal Sentencing Guidelines Manual, Section 3B1.1,

Application Note 1 (Nov. 1990), reprinted in Appendix

hereto, at App. 38, (emphasis added). Courts have

strictly construed the definition of “participant” in

determining role in the offense. See e.g., United States v.

Carroll, 893 F.2d 1502, 1511 (6th Cir. 1990); and United

States v. Fuller, 897 F.2d 1217 (1st Cir. 1990). In the

instant case, there was no finding that Swanson’ crimi-

nal activity relating to Counts I[ and III involved any

other persons criminally responsible for the conduct.

Although the indictment identified Steven Brooks as a

participant in the alleged offenses, no evidence was

introduced, nor any findings made, concerning the role of

any other participants involved in the shipping of any

videotape. much less than transport of the single vid-

eotape determined to be obscene.

As noted in the commentary to Section 3B1.1 of the

federal sentencing guidelines, “the section provides a

range of adjustments to increase the offense level based

upon the size of a criminal organization (i.e. the number

of participants in the offense) and the degree to which

the defendant was responsible for committing the

offense.” See Appendix, App. 38. Application of the max-

imum four level increase in the instant case is wholly

contrary to the Sentencing Commissions intent where

there was no extensive criminal organization involved in

the shipping of one obscene videocassette tape, and

where the Petitioner had no responsibility for the com-

mission of the offense other than holding a corporate

title.

Based upon the division among the circuits con-

cerning the interpretation of the term “offense” in deter-

mining whether an adjustment is appropriate for a

defendant's role in the offense, and the lack of findings in

the record to support a four level increase of Petitioner

Swansons offense level in the instant case, the within

Petition should be granted by this Court.

IV.

A CORPORATE DEFENDANT’S CONVICTION FOR

CONSPIRACY TO TRANSPORT OBSCENE

MATERIAL THROUGH INTERSTATE COMMERCE

CANNOT BE SUSTAINED WHERE THE

SUBSTANTIVE COUNTS IN WHICH IT WAS

CHARGED AND THE OVERT ACTS ALLEGED IN

FURTHERANCE OF THE CONSPIRACY DID NOT

INVOLVE OBSCENITY, BUT RATHER,

SSTABLISHED ONLY AN AGREEMENT TO

TRANSPORT CONSTITUTIONALLY PROTECTED

SPEECH MATERIAL

The essence of conspiracy is an agreement to commit

an illegal act. See e.g., United States v. Coler, 583 F.2d

1135 (8th Cir. 1978). Moreover, the general rule is that a

conspirator is liable for the acts of his co-conspirators as

long as he is a member of the conspiracy. See e.g., United

States v. Cimint, 427 F.2d 129 (6th Cir), cert. den., 400

U.S. 911 (1970). However, this general rule “does not

control when First Amendment rights are at stake.”

United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981).

In most federal cases, such as those involving nar-

cotics trafficking, kidnapping, bank robbery and other

crimes persons may conspire to commit, the illegal pur-

pose of the conspiracy will be illegal in every federal

jurisdiction. However, it is impossible to conspire to

violate the federal obscenity statutes without the exis-

tence of a specific obscene item to transport. Sexually

explicit material is not illegal until it is proven obscene.

See e.g., Heller v. New York, 413 U.S. 483 (1973); and

Roaden v. Kentucky, 413 U.S. 496 (1973). As such, when

the agreement alleged is one to distribute materials

which constitute expression, the agreement may have

both legal and illegal purposes depending on varying

community standards. United States v. Peraino, supra,

645 F.2d, at p.551.

In the instant case, Petitioner General Video Mid-

west was charged and convicted, along with Petitioners

ABC, Inc. and David Swanson, of conspiring to use a

common carrier to transport obscene material in inter-

state commerce in violation of 18 U.S.C. Sections 371 and

1462. The only overt acts or “unlawful purpose” alleged

in the instant case involved the three videotapes charged

in the substantive counts of the indictment. However the

jury concluded that the videotapes charged in two of

three substantive counts of the indictment were not

obscene and, therefore, cannot be illegal objectives of the

conspiracy. While the jury found the videotape in the

remaining substantive count to be obscene, General

Video Midwest was not charged in that count of the

indictment. Therefore, by the Government's own admis-

sion, as evidenced by its failure to charge General Video

Midwest in that count, there was not sufficient evidence

linking General Video Midwest to the single obscene

videotape either by shipment or agreement. Con-

™~

sequently, there was no showing of any illegal objective

to the conspiracy either committed or agreed to by Gen-

eral Video Midwest.

Rather, the most the Government can prove in this

case, absent a conviction of General Video Midwest on

any substantive count (and absent a showing that Gen-

eral Video Midwest was involved in any illegal objective

of the conspiracy such as those alleged in the overt acts

of the conspiracy) is that certain persons conspired to

ship sexually explicit material, which, in itself, is not a

crime. Consequently, the Government failed to show that

General Video Midwest agreed to do anything illegal.

The videotapes alleged in the two substantive counts in

which General Video Midwest was charged, and the

overt acts alleged in the conspiracy count were not, in

any way, shown to involve obscenity or General Video

Midwest. Cleariy, General Video Midwest was not

involved with any videotapes found to be obscene, and

any agreement entered into by General Video Midwest

can only be considered an agreement to transport consti-

tutionally protected speech material.

Moreover, the Eighth Circuit seemingly overlooks

those few cases in which the combination of substantive

obscenity offenses and conspiracy is alleged. In the

majority of tnose cases, the defendants convicted of the

conspiracy were also convicted of at least one substan-

tive count. See e.g., United States v. Cangiano, 491 F.2d

906 (2nd Cir.) cert. den., 419 U.S. 904 (1974); United

States v. Cohen, 583 F.2d 10380 (8th Cir. 1978); United

States v. Marks, 520 F.2d 913 (6th Cir.), rev'd on other

grounds, 430 U.S. 188 (1977). Cf, United States v. Fried-

man, 506 F.2d 511 (8th Cir), cert. den., 423 U.S. 855

(1975). In the single case in which a conspiracy convic-

tion was obtained without a conviction of an obscenity

count, the defendant conceded the materials involved

were obscene and the ultimate issue in the case was

whether the defendants were involved in the conspiracy.

United States v. Zuideveld, 316 F.2d 873 (7th Cir), cert.

den., 376 U.S. 916 (1964). “There need not be proof the

conspirators were aware of the criminality of their objec-

tive, but knowledge of the commission of the substantive

offense must be brought home to them to supply the

essential ingredient of intent.” Id., at 878 (emphasis

added).

In the instant case, General Video Midwest was

acquitted of all substantive offenses specified as overt

acts in the conspiracy count. In addition, oniy the one

videocassete tape was determined to be obscene. Based

upon the evidence in this case, General Video Midwest

had absolutely nothing to do with that particular vid-

eotape. It did not agree that the videotape be sent, nor

did it take any steps in furtherance of a conspiracy with

respect to the videotape.

Accordingly, the Eighth Circuit’s affirmation of Peti-

tioner General Video Midwest’s conviction is contrary to

the decisions of numerous other federal appellate courts

and violative of Petitioner’s First Amendment rights of

freedom of speech. Therefore, the within Petition should

be granted by this Court.

CONCLUSION

Rule 10 of the Supreme Court Rules states that

review on a writ of certiorari will be granted only when

“special and important reasons” to do so exist. One

significant reason for granting certiorari pursuant to

Supreme Court Rule 10.1(a) is when a federal appellate

court has rendered a decision in conflict with the deci-

sions of numerous other federal circuit courts of appeal

on the same matter.

Based upon the foregoing arguments and

authorities, the Eighth Circuit’s decision in the instant

case is in direct conflict with the decisions of numerous

other federal courts, particularly with regard to those

issues involving the applicability and statutory con-

struction of various provisions of the federal sentencing

guidelines. Because the conflicts among the circuits

themselves perpetuate the v cy uncertainties and dis-

parities in sentencing that the guidelines were designed

to eliminate, Petitioners respectfully request this Court

grant the within Petition for a Writ of Certiorari to

review the Eighth Circuit's opinion in this case.

DATED: July31,1991

Respectfully submitted,

ARTHUR M. SCHWARTZ, P.C.

Arthur M. Schwartz*