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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 866

## Text

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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 .............

il

12

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,
22

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

vi

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.

2

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
I.

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.

10

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.

11

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|.

12

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

13

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

14

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).

—
-
~t

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.

16

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

18

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

20

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-

™~
Ne

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

23

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.

24

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*

Bradley J. Reich

Michael W. Gross

Cindy D. Schwartz

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

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2489%3A1. Public record. Not legal advice.