Appendix — Sovereign News Co. v. United States

82-1676

Office -Supreme Court, U.S.

FILED

APR 12 (983

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

-_

SOVEREIGN NEWS COMPANY,

Petitioner,

—vs.—

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BERNARD A. BERKMAN

J. MICHAEL MURRAY

BERKMAN, GORDON, MURRAY and PALDA

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorneys for Petitioner

Of Counsel:

LORRAINE R. BAUMGARDNER

TABLE OF CONTENTS

Page

Judgment of the Sixth Circuit

Court of Appeals (No. 80-3197)... A-l

Opinion of the Sixth Circuit

Court of Appeals (No. 80-3197)... A-3

Order of the Sixth Circuit Court

of Appeals Denying, Without

Prejudice, Appellant's Motion

to Reinstate Appeal to the

Court's Active Docket .cccseseses A-40

Opinion and Judgment of the

District Court Denying Plain-

tiff's Motion For Return of

Property (No. C75-620,621)...... A-42

Order of the District Court

Denying Plaintiff's Motion

for Return of Property

(No. C75=-620) cvscec ereeeeeee was A-68

Order of the District Court

Denying Plaintiff's Motion

To Restrain Use of Seized

Materials Pending Appeal

(BO. C75—-620) cccccsvvsccecosverses A-70

Order of the District Court

Denying Plaintiff's Motion

For Return of Property

(NO. C7E-G2k) cc sceescevescvavecs AVTE

Order of the District Court

Denying Plaintiff's Motion

To Restrain Use of Seized

Materials Pending Appeal

(BO. C75-62Zk) pccctcvecsneda Pee ee et

TABLE OF CONTENTS (Cont.)

Amended Motion For Return of

Property and Request for

Hearing (No. C75-620).......

Amended Motion For Return

of Property and Request

for Hearing (No. C75-621)...

First Search Warrant With

MEeeeeevae 2m SUPPOFt... 2.00.

Second Search Warrant With

Affidavit in Support.......

Ee

gg ES

- -A-148

e+ AA-182

.- A-183

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 80-3197

SOVEREIGN NEWS

COMPANY,

Plaintiff-

Appellant,

vs.

UNITED STATES

OF AMERICA

Defendant-

Appellee.

Before: MERRITT and MARTIN, Circuit

Judges; and PHILLIPS, Senior Circuit

Judge.

JUDGMENT

APPEAL from the United States District

Court for the Northern District of Ohio.

THIS CAUSE came on to be heard on the

record from the United States District

Court for the Northern District of Ohio

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be and the same is

hereby affirmed and case is remanded for

further proceedings consistent with the

opinion of this Court.

Each party to bear its own costs on

this appeal.

ENTERED BY ORDER OF

THE COURT

John P. Hehman, Clerk

/s/John P. Hehman

Clerk

Issued as Mandate: A True Copy.

January 19, 1983

COSTS: None Attest:

Filing Fee....$

Printing. ....$

/s/George McCarthy

Total... F Deputy Clerk

No. 80-3197

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SOVERIEGN NEWS CO.,

)

)

Plaintiff-Appellant, ) ON APPEAL from

) the United

¥; ) States District

) Court for the

) Northern Dis-

)

)

)

trict of Ohio.

UNITED STATES OF

AMERICA,

De fendant-Appellee,

Decided and Filed October 6, 1982.

Before: MERRITT and MARTIN, Circuit

Judges; and PHILLIPS, Senior Circuit

Judge.

BOYCE F. MARTIN, JR., Circuit Judge.

The Sovereign News Company appeals an

order denying a motion for the return of

copies of property seized during an

obscenity investigation. The United

States seized certain films, books, and

business records during the investigation

which culminated in a 1978 trial and

acquittal. After the trial, the govern-

ment returned all original evidence, but

retained copies of the business records.

Sovereign News then filed this motion

under Fed. R. Crim. P. 4l(e), claiming

that the government must also return the

copies because the originals were

illegally seized. In 1976, while the

obscenity proceedings were pending,

Sovereign News filed a similar motion

relating to the original evidence. This

court held that it did not have juris-

diction to hear the 1976 motion because

of the ongoing obscenity prosecution.

Sovereign News Company v. United States,

544 F.2d 909 (1976) (per curiam), cert.

denied, 434 U.S.817 (1977). In the

present matter, the United States urges

us to reach a similar holding of "no

jurisdiction" because the government

claims the business records in question

are now relevant to an ongoing criminal

tax investigation.

Sovereign News, on the other hand,

contends that the government obtained

the business records as the result of

two illegal searches on March 19 and 25,

1975, made in reliance on invalid search

warrants.

Both parties' arguments are without

merit. We assert jurisdiction over

the appeal and affirm the decision of

the District Court. However, we hold that

when the government has no further

legitimate use for the records, it

must return the copies as well as the

originals.

I. Jurisdiction

The government bases its jurisdictional

argument on our decision in the first

Sovereign News case and DiBella v. United

States, 369 U.S.121 (1962). In DiBella,

the Supreme Court held that the denial of

a motion for the return of property is

appealable only if it is not tied to a

criminal prosecution in esse, i.e., in

progress. 369 U.S. at 131-32. However,

if a prosecution is in progress, "(the

41(e) motion] shall be treated also as

a motion to suppress under Rule 12."

Fed. R. Crim. P. 4l(e). Motions to

suppress evidence are "truly interlocu-

tory" and not appealable. DiBella v.

United States, 369 U.S. at 131; Cogen

v. United States, 278 U.S. 221 (1929).

The government contends that since a

grand jury allegedly has been empanelled

to hear the results of the tax investi-

gation, we must apply the DiBella rule

again. We disagree.

The government admits that it did not

raise this question before the District

Court and that the issue does not appear

on the record. A party may not by-pass

the fact-finding process of the lower

court and introduce new facts in its

brief on appeal. Richardson v. Blanton,

597 F.2d 1078, 1079 (6th Cir 1979), cert.

denied, 444 U.S. 886 (1979). Therefore,

we decline to exercise any discretion we

might have under the "plain error"

doctrine. Fed. R. Crim. P. 52(b). Fed.

R. App. P. 10(e). United States v.

Bowling, 351 F.2d 236, 241 (6th Cir.

1965), cert. denied, 338 U.S. 908 (1966).

Additionally, the criminal prosecution

must be "in being" to render a 41(b)

motion interlocutory. A criminal prose-

cution is not "in being" if it is still

in the investigatory stage. Mr. Lueky

Messenger Service, Inc. v. United States,

oe? Feae i5, 16 (7th Cir. 1978).

Because no indictment has been issued

and no charges have been filed in any tax

proceeding, the District Court's decision

is a final appealable order. While we do

not establish any hard and fast rule for

determining when a criminal prosecution

becomes "in being" for purposes of the

DiBella rule, we find that the mere

possibility of a prosecution is too

remote "to deprive the district court's

order of finality." United States v.

Premises Known as 608 Taylor Ave., 584

F.2d 1297, 1301 (3d Cir. 1978). In

the present case, the government seized

appellant's business records in 1975

for an obscenity investigation which

ended in 1978. It is now 1982. We will

not permit the government to characterize

the present appeal as "interlocutory"

because the same evidence may or may not

be relevant to a completely different

investigation. In so doing, we would

postpone appellant's access to appellate

review indefinitely. We do not inter-

pret DiBella to require such as result.

United States v. Premises Known as 608

Taylor Ave., 584 F.2d at 1301. See also

Hunsucker v. Phinney, 497 F.2d 29 (5th

Cir. 1974), cert. denied, 420 U.S. 927

(1975); Richey v. Smith, 515 F.2d 1239

(Sth Cir. 1975).

II. The Searches

A. The First Search

The government conducted the first

search on March 19, 1975. Sovereign News

challenges the validity of that search

on two grounds. First, it contends that

the search warrant was invalid because

of a misrepresentation by the issuing

magistrate. Second, Sovereign News con-

tends that the government agents committed

a separate illegal seizure by taking

notes of other evidence unrelated to the

items listed in the search warrant.

On March 14, FBI Agent George Grotz

presented ten films and several stacks of

magazines to Magistrate Herbert T. Maher.

Magistrate Maher viewed between three and

five of the films in their entirety. He

then viewed selected sections of other

films by holding them up to a light to

determine if they were similar to the

other films. Finally, he examined the

contents of the top magazine in each

stack before him.

On March 18, Grotz and United States

Postal Inspector Ronald Baranowski

appeared before Maher seeking a search

warrant for the premsies of Sovereign

News. In support of the warrant, Grotz

and Baranowski submitted an affidavit

which listed the titles of the ten films

and forty-nine magazines which Grotz and

Baranowski described as obscene and

believed to be in Sovereign News' ware-

house. The affidavit stated that, based

on information received from a confidential

informant, federal agents in Texas had

intercepted these films and magazines

in packages mailed by Sovereign News in

Cleveland to an "adult bookstore" in Fort

Worth. The affidavit stated that Agent

Grotz had reviewed the contents of all

the item listed and described those con-

tents as depicting "acts of sexual inter-

course, fallatio [sic], cunnilingus,

analingus, ejaculation and masturbation."

The remainder of the thirty-three page

affidavit detailed the facts and circum-

stances supporting the belief that the

Sovereign News Company was engaged in

the interstate transportation of similar

magazines and films.

On the basis of the affidavit and his

own examination, Magistrate Maher issued

a search warrant which authorized the

seizure of three evidentiary copies of

each of the ten films and forty-nine

magazines named in the affidavit. The

magistrate attached the affidavit to the

warrant as Exhibit B and attached a list

of the films and magazines as Exhibit A.

The warrant also authorized the seizure of

"records, receipts, notations, bills of

lading, journals, ledgers, billing

invoices, inventories and other documents

reflecting the importation, receipt, and

shipment of aforementioned obscene

material in interstate commerce or by the

U.S. Postal Service." In the space

reserved for the "facts tending to estab-

lish the foregoing grounds for issuance

of a Search Warrant," Magistrate Maher

first listed "See attached affidavit:

Exhibit B." He then added that "[o]n

March 14, 1975, U.S. Magistrate Herbert

T. Maher was presented with and did examine

copies of the magazines and motion pic-

ture films listed in Exhibit A."

A-12

Sovereign News argues that this mis-

statement on the face of the warrant

invalidated the warrant under Franks v.

Delaware, 438 U.S. 154 (1978). In Franks,

the Supreme Court held that a defendant

could challenge the veracity of a warrant

affidavit. Id. at 165. The Court sought

to avoid deception of the magistrate by

the affiant. The danger of deception

does not exist here. Sovereign News does

not contend that the affidavit was false

or misleading in any way. Therefore,

Franks, which concerns false affidavits,

does not control the instance case.

Furthermore, Magistrate Maher went

beyond the law's requirements by person-

ally examining the target materials. He

could have issued the warrant on the basis

of the affidavit alone. Instead, he

investigated a representative sample of

the materials presented to him. United

A-13

States v. Espinoza, 641 F.2d 153, 162-64

(4th Cir. 1981), cert. denied, --U.S.--,

102 S.Ct. 153 (1981); United States v.

Thomas, 613 F.2d 787, 790 (10th Cir.),

cert. denied, 449 U.S. 888 (1980. United

States v. Middleton, 599 F.2d 1349 (5th

Cir. 1979). In this case, as in Middleton,

the affidavit "related these passages in

graphic detail, thereby enabling the

magistrate 'to focus searchingly on the

question of obscenity.'" 599 F.2d at

1359. Magistrate Maher's action was a

good faith effort to protect the appel-

lant's rights. His statement on the

warrant did not compromise the validity

of the information he had received and

was at worst a superfluous technical

error. We will not penalize the law

enforcement authorities by overturning

this otherwise valid warrant. United

States v. Ventresca, 380 U.S. 102, 109

(1965).

A-14

Sovereign News also argues that Magis-

trate Maher's misstatement evidenced bias

on his part and, therefore, makes the

warrant invalid under Lo-Ji Sales, Inc.

v. New York, 442 U.S. 319 (1979). In

Lo-Ji, the magistrate issued an essentially

blank search warrant which he completed

after accompanying the police on their

search of an adult bookstore. As a result,

the magistrate became a member of the

investigating unit. That is not the case

here. Magistrate Maher's statement is

insufficient to destroy his status as a

"neutral and detached magistrate."

Collidge v. New Hampshire, 403 U.S. 443,

449-53 (1971).

Appellant next argues that the taking

of notes by the agents constitutes an

illegal search and seizure. {n support

of this argument, Sovereign News cites

this court's decision in United States

v. Gray, 484 F.2d 352 (6th Cir. 1973),

A-15

cert. denied, 414 U.S. 1158 (1974). The

Gray case involved the search of a house

for evidence of a "moonshine" operation.

During the search, the officers saw

several rifles in the suspect's closet.

They removed the rifles to another room

and copied the serial numbers. A trace

of the numbers revealed the rifles to

be stolen property. We reversed the

defendant's conviction for violation of

firearms statutes, 18 U.S.C. §§992(h) (1)

and 922(3j), because the officers had

"seized" the rifles which were not listed

in the search warrant. "[(T]here was no

nexus between the rifles and the crimes

of selling or possessing intoxicating

liquor without a license; nor did the

officers have knowledge that the rifles

were evidence of any other crime." 484

F.2d at 355. The police may not seize

"one thing under a warrant describing

A-16

another." Marron v. United States, 275

U.S. 192, 196 (1927).

However, in this case, there is an

obvious nexus between the items "seized" by

the officer's notation and the focus of the

search warrant. The officers who searched

the premises of Sovereign News did not

open boxes containing materials not listed

in the warrant nor did they peer into areas

which could not have contained the specified

items. The officers noted the titles of

films and magazines which were in plain

view during the course of their search. In

addition, they took note of other business

records. The government used these notes

to prepare a second search warrant. The

information related to the warrant being

executed was gathered in an unobtrusive

manner. Thus, the facts meet the

primary requirements of the "plain

view" doctrine. Briefly, those require-

ments are: (a) the officer must be

A-17

lawfully on the premises; (b) the incrim-

inating nature of the evidence seized

must be immediately apparent; and (c) the

discovery must be inadvertent. See

Coolidge v. New Hampshire, 403 U.S. at

465-71.

The facts here also fit United States

v. Espinoza. In Espinoza, agents photo-

graphed the defendant's office and ware-

house during an obscenity investigation.

The court excused the "seizure" of the

agent's "mental images" under the plain

view exception. The photographer was law-

fully present on the premises; the images

were evidence of criminal activity; and

the evidence was found inadvertently.

United States v. Espinoza, 641 F.2d at

166-67. |

Appellant argues that the "seizure"

by note-taking was neither inadvertent

nor properly limited to evidence whose

incriminating nature was immediately

apparent. Neither argument is persuasive.

First, the fact that the officers expected

to find non-listed, obscene materials

during the warrant's execution does not

rule out inadvertence.

There are many times when a police

officer may "expect to find evi-

dence in a particular place, and

that expectation may range from

a weak hunch to a strong sus-

picion. However, the Fourth

Amendment prohibits either a

warrant to issue or a search

based on such an expectation.

Yet if in the course of an intru-

sion wholly authorized by another

legitimate prupose, that hunch

or suspicion is confirmed by

an actual observation, the

police are in precisely the

same position as if they were

taken wholly by surprise by the

discovery.

United States v. Hare, 589 F.2d 1291,

1294 (6th Cir. 1979). Second, the affi-

davit submitted for the second warrant

described the outside appearance of the

noted materials in graphic detail. This

description was sufficient to justify

A-19

noting the materials as possible evidence

of criminal activity directly related to

the activity under investigation.

We conclude that the note-taking in

the present case was not an illegal seizure.

The notes concerned objects related to the

search in progress; the objects were in

plain view and the objects were discovered

inadvertently.

B. The Second Search

On March 25, Agent Grotz returned to

Magistrate Maher to obtain a warrant for

another search of Sovereign News' premises.

Grotz submitted an affidavit which reviewed

the results of the first search and listed

the magazines and films observed but not

seized. The affidavit noted that certain

magazines were seen "in plain view" and

stated that the magazine covers "vividly

depicted obscene sexual activites between

males and females, males and males,

A-20

females and females, including acts of

fellatio, cunnilingus, and ejaculation,

of the same kind which were seized pur-

suant to the aforementioned search warrant."

In addition, the affidavit stated that

numerous boxes of eight millimeter films

were observed "in plain view" and that

the covers of the boxes "also depicted

obscene sexual activities between males

and females, males and males, females

and females, which included obscene sexual

acts of fellatio, cunnilingus and ejacu-

lation and masturbation." The affidavit

then listed the titles of the magazines

and films which were seen in plain view.

Furthermore, the affidavit listed certain

business records observed during the

search “reflecting the ongoing interstate

shipments of obscene material." Finally,

the affidavit described an FBI investiga-

tion concerning a recent shipment of

A-21

obscene magazines from a company in San

Fernando, California, to Sovereign News.

After examining the affidavit, Magis-

trate Maher issued the requested warrant.

The warrant authorized the seizure of

three evidentiary copies of each of the

listed films and magazines as well as

"other magazines and movies of the same

kind and nature." The warrant also

authorized the seizure of "records, receipts,

notations, bills of lading, journals,

ledgers, billing invoices, inventories,

and other documents reflecting the impor-

tation, receipt, and shipment" of sizeable

publications as well as “docments reflect-

ing the corporate structure of Sovereign

News Company and any of its affiliate

companies."

Sovereign News attacks the warrant on

the grounds that (1) there was not enough

probable cause shown and that (2) the

A-22

Warrant was impermissibly broad. Again,

we do not agree.

First, Sovereign News argues that Marcus

v. Search Warrant, 367 U.S. 717 (1961),

invalidates the warrant in question. In

Marcus, the, Supreme Court invalidated a

warrant based "on the strength of the

conclusory assertions of a single police

officer, without any scrutiny by the judge

of any materials considered by the

complainant to be obscene." 367 U.S. at

731-32. The Marcus warrant did not con-

tain either a list or a specific descrip-

tion of the publications to be seized.

Rather, the warrant allowed the officers

to make "ad hoc decisions" with complete

discretion. 367 U.S. at 732.

Appellant also relies upon Lee Art

Theater v. Virginia, 392 U.S. 636 (1968),

in which the Supreme Court invalidated a

warrant which stated only the title of the

A-23

pictures and "that the officer had deter-

mined from personal observation of them and

of the billboard in front of the theatre

that the films were obscene." 392 U.S.

at 636. The Court invalidated the warrant

because the justice of the peace issued

the warrant "solely upon the conclusory

assertions of the police officer" and

"without any inquiry...into the factual

basis for the officer's conclusions."

392 U.S. at 637.

Conclusions alone are insufficient to

support a warrant, as are descriptions of

only the titles or covers of the materials.

See, e.g., United States v. Tupler, 564

F.2d 1294 (9th Cir. 1977). The magistrate's

decision must rest upon a consideration of

the contents of the work as a whole.

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

Since the underlying affidavit, in the

present case, provided only the titles

and descriptions of the materials covers,

the second warrant, when viewed alone,

A-24

would fail the constitutional test.

However, we cannot view the second

warrant in a vacuum. The Supreme Court

stated that "affidavits for search warrants

...-must be tested and interpreted by

magistrates and courts in a commonsense

and realistic fashion." United States v.

Ventresca, 380 U.S. 102, 108 (1965). The

same magistrate issued both warrants only

seven days apart at the request of the

same agent who was conducting the same

investigation. The second affidavit

recounted both the first search and the

nature of the items collected. MThe affi-

davit then provided a list of materials

whose titles and covers strongly suggested

that they were of the same variety as

those already seized. This court has

allowed probable cause tole established

by reading related affidavits in conjunc-

tion with one another. United States v.

Manufacturers National Bank of Detroit,

536 F.2d 699 (6th Cir. 1976), cert. denied,

429 U.S. 1039 (1977).

The October 7th affidavit did

not contain the detailed infor-

mation concerning the Detroit

numbers operations which was set

forth in the affidavit of the

previous day. After repeating

the opening paragraphs of the

earlier affidavit verbatim, it

was limited to a statement of

the results of the search of the

Wingate residence and the asser-

tion that the evidence gained in

this search established probable

cause for a search of safety

deposit box #127. The magis-

trate was entitled to consider

the October 6th affidavit in

conjunction with the one pre-

sented the following day in

determining whether probable

cause had been established for

a search of the bank box of

appellants. Both affidavits

referred to the same eighteen-

month investigation and the

alleged complicity of James

Wingate in the Detroit numbers

operations. The second affi-

davit referred specifically to

the search warrant which the

magistrate had issued the

previous day.

536 F.2d at 702. See also United States

v. Dudek, 560 F.2d 1288 (6th Cir. 1977),

cert. denied, 434 U.S. 1037 (1978);

United States v. Cortellesso, 601 F.2d

28 (6th Cir. 1979), cert. denied, 444

U.S. 1072 (1980).

The two warrants read together estab-

lish a sufficient nexus between the

contents of items seized in the first

search and the contents of the items

described in the second search warrant.

Because the magistrate and the investigat-

ing officer had viewed the contents of the

items seized in the first search, they had

probable cause to believe the materials

listed in the second warrant were obscene.

In reviewing this case, we must remem-

ber that the Supreme Court has specifically

stated that that magistrate need not

view a film before seizing it. Heller v.

New York, 413 U.S. 483, 488 (1973). "In

dealing with probable cause...as the very

name implies, we deal with probabilities."

A-27

Brinegar v. United States, 338 U.S. 160,

175 (1949). Furthermore, "deference is

to be accorded an independent judicial

officer's finding of probable cause, with

doubtful cases governed largely by the

preference which our legal system gives

to warrants." United States v. Jenkins,

5925 F.2d 819, 824 (6th Cir. 1975). See

Spinelli v. United States, 393 U.S. 410,

419 (1969).

In summary, we have already found that

the initial search complied with the rule

of Marcus v. Search Warrant. Rather than

seizing other apparently obscene material,

the agent recorded what they observed in

plain view. The agents could not view

the contents of the material without

violating the appellant's privacy rights

and other rights under the First and Fourth

Amendments. See, e.g., United States v.

Gray. Therefore, they did the only thing

A-28

they could do. They returned to the

magistrate and sought his independent

determination concerning probable cause

to seize materials which appeared to be

of a similar nature. The materials bore

similar pornographic covers and suggestive

title and were in the same location as

the first group of materials. Thus,

viewing the second affidavit in light of

the existing circumstances and the results

of the first search, the magistrate had

ample evidence for finding of probable

cause under the Miller standard.

Appellant contends that the second

warrant is facially overbroad because of

the phrase which authorizes the seizure

of "other magazines and movies of the same

kind and nature." Appellant argues that

this clause turns the warrant into a

"general warrant," or "a general, explori-

tory rummaging in a person's belongings"

which the Fourth Amendment prohibits.

Coolidge v. New Hampshire, 403 U.S. at 467.

A-29

This charge is even more serious where the

items to be seized have the presumptive

protection of the First Amendment - i.e.,

books and the ideas they contain.

Stanford v. Texas, 379 U.S. 476, 485 (1965).

However, appellant admits that the

agents seized only magazines and movies

listed in the exhibit attached to the

warrant. Therefore, the materials received

the required protection under the second

warrant. We refuse to invalidate the

entire warrant as appellant requests.

Where the police and the issuing magis-

trate have listed the titles of the

primary targets of the search, we will

not invalidate the entire warrant. Rather,

we will sever and invalidate those portions

containing theoverbroad language and

allow the itmes seized under the proper

section to stand as evidence. United

States v. Espinoza, 641 F.2d at 164-65;

United States v. Torch, 609 F.2d 1088,

1089-90 (4th Cir. 1979), cert. denied, 446

U.S. 957 (1980). See also W. LeFave, 2

Search and Seizure: A Treatise on the

Fourth Amendment, § 4.6(f) (1978).

Appellant attempts to compare the facts

of this case to the facts of Marcus and

Lo-Ji. We see no analogy. In both of

those cases the authorities made little

Or no attempt to identify beforehand the

materials to be seized. Instead, the

exeucting officers exercised "unfettered

discretion" to seize whatever materials

they thought were obscene. This is the

evil which the Supreme Court sought to

avoid when it stated that the items to be

seized must be described with "scrupulous

exactitude." Stanford v. Texas, 379 U.S.

at 485. Here, by contrast, the authorities

have not exercised unfettered discretion,

but have seized only those items specifi-

A-31

cally designated. We will not overturn

solid police work for errors which resulted

in no harm.

Finally, Sovereign News argues that

the warrant does not describe the seized

business records with sufficient particu-

larity. However, business records do not

enjoy the same level of First Amendment

protection as non-obscene books and maga-

zines. Stanford v. Texas, 379 U.S. at

485 n.16; Marron v. United States, 275

U.S. 192, 198-99 (1927); United States v.

Torch, 609 F.2d at 1090. The magistrate

was entitled to describe these items

generically in the warrant, since any

greater specificity with regard to these

items is virtually impossible. United

States v. Cortellesso, 601 F.2d at 33;

United States v. Jacobs, 513 F.2d 564

(9th Cir. 1975). Cf. Andresen v. Maryland,

427 U.S. 463 (1976).

A-32

In conclusion, we find no constititional

error in either the issuance or execution

of either warrant.

III. Subsequent Return of the Copies

We now turn our attention to the sub-

sequent disposition of the copies. "The

general rule is that seized property,

other than contraband, should be returned

to the rightful owner after the criminal

proceedings have terminated." United

States v. Francis, 646 F.2d 251, 262 (6th

Cir. 1981); United States v. LaFatch, 565

F.2d 81, 83 (6th Cir. 1977), cert. denied,

435 U.S. 971 (1978). This is true whether

or not the original seizure was lawful.

United States v. Francis, 646 F.2d at 262,

n.7. Where the former defendant in crim-

inal proceedings can show a property

interest in the copies, the government

must return them. Thus, the initial issue

is whether Sovereign News can show a

A-33

sufficient property interest in the copies

to demand their return.

The United States contends that Suover-

eign News does not have a property interest

because the copies are "business records."

This argument is based upon United States

v. King, 528 F.2d 68, 69 (9th Cir. 1975)

where the court refused to order the

government to surrender transcripts of

defendant's telephone conversations

recorded by the government. Ruling on

a Rule 41(e) motion the court held that

defendant had not demonstrated entitlement

to "lawful possession of the property

which was illegally seized" as required by

4l(e). Id. at 69. "He is no more the

owner of the tapes and transcripts of the

conversations made by the government than

he is the owner of the mental impressions

and memories of the government agents who

intercepted the conversations." Id. In

A-34

this case, however, Sovereign News has a

property interest in the copies because the

business records copied were the sole

property of Sovereign News. Therefore,

Sovereign News has a right to the return

of the copies.

However, we must balance this right

against the legitimate needs of the United

States. We agree that the government

has a right to copy documents lawfully in

its possession. United States v. Ponder,

444 F.2d 816, 820 (5th Cir. 1971), cert.

denied, 405 U.S. 918 (1972). United States

v. Chapman, 559 F.2d 402, 405 (5th Cir.

1977). We also agree that "[a] defendant's

motion for return of property will be

unavailing where the government has a

continuing interest in the property."

United States v. Francis, 646 F.2d 25l,

263 (6th Cir. 1981). United States v.

Premises Knows as 608 Taylor Avenue, 584

F.2d 1297, 1303 (3d Cir. 1978). This

A-35

"continuing interest" can include a criminal

or tax investigation in progress. Warden

v. Hayden, 387 U.S. 294, 307 (1967); United

States v. One Residence and Attached Garage,

etc., 603 F.2d 1231, 1234 (7th Cir. 1979).

However, we hold that when the government

has held the copies for a "reasonable time"

and has no investigations in progress, it

must return the copies as well as the

Originals. Mr. Lucky Messenger Service

v. United States, 587 F.2d at 17; cf.

United States v. Wallace & Tiernan Company,

336 U.S. 793, 800-801 (1948).

The United States contends that it

can keep the copies indefinitely since

it seized the originals lawfully. It

bases this conclusion on United States v.

Chapman, 559 F.2d 402 (5th Cir. 1977).

We decline to interpret Chapman so

broadly. The Chapman court decided that

the United States properly retained copies

of gambling records to investigate tax

questions concerning the defendants.

Apparently, there was a legitimate use for

the records. In the present case, we can

conceive of no legitimate purpose for

retaining these documents if the United

States contemplates no actual use for

them. The government may not keep the

copies purely for the sake of keeping them

or because it is "hopeful" they may be

relevant to some future investigation.

United States v. Moore, 423 F.Supp. 858,

859-60 (S.D. W.Va. 1976). This amounts

to harrassment.

Therefore, on remand, the District Court

should require the government to show cause

why it is retaining these copies. If

the copies are needed for an ongoing or

proposed specific investigation, the

government is entitled to retain them.

See, e.g., United States v. Chapman,

United States v. Murphy, 413 F.2d 1129,

A-37

1140 (6th Cir.), cert. denied, 396 U.S.

896 (1969). If the materials are being

used for grand jury proceedings, we refer

the court to the three tests set forth in

In re Grand Jury Proceedings, 507 F.2d

963 (3d Cir. 1975). Those tests require

a showing that the materials were (1) rele-

vant to an investigation, (2) properly

within the grand jury's jurisdiction, and

(3) not sought primarily for another pur-

pose such as harassment. Id. at 966.

In order to protect the secrecy of the

grand jury, the court may wish to hold

the hearing in camera. See Mr. Lucky

Messenger Service v. United States, 587

F.2d at 17; Shea v. Gabriel, 520 F.2d

879, 882 (lst Cir. 1975).

In summary, we hold that this court

has jurisdiction to hear the case because

the District Court's order denying return

of the copies was a final order. Next,

A-38

we hold that the searches of March 19 and

25, 1975 were valid and legal searches.

Finally, we hold that since the appellant

has demonstrated an undivided property

interest in the copies of the business

records, it is entitled to immediate

return of the copies unless the government

can demonstrate that the copies are

necessary for a specific investigation.

We therefore affirm the order of the

District Court and remand the case for

further proceedings consistent with this

opinion,

A-39

NO. 75-2431

75-2432

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SOVEREIGN NEWS

COMPANY

Plaintiff-Appellant

ORDER

Vv.

UNITED STATES OF

)

)

)

)

)

)

)

AMERICA, )

)

)

Defendants~-Appellees

Before PHILLIPS, Chief Judge, LIVELY,

Circuit Judge and PECK, Senior Circuit

Judge.

Appellant has filed a motion "to

vacate the judgment of this court dismissing

these appeals without prejudice and/or to

reinstate and restore these cases to the

court's active docket and for an order

prescribing a schedule for disposition

of these cases on the merits."

Upon consideration, it is ORDERED that

said motion be denied, but without preju-

dice to the right of appellant to renew

its motion in the district court for the

recovery of its property alleged to have

been seized unlawfully and unconstitution-

ally by federal agents, and, in event of

the denial of said motion by the district

court, to perfect an appeal to this court

from such denial.

Entered by order of the Court.

/s/John P, Hehman

A-41

[Filed Feb. 14, 1980]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SOVEREIGN NEWS

COMPANY

Nos. C75-620,

C75-621

Plaintiff

UNITED STATES OF

AMERICA

)

)

)

)

)

Ve )

)

)

)

)

Defendant )

MEMORANDUM AND ORDER

THOMAS, J.

A jury, on July 24, 1978, acquitted

Sovereign News and seven individual defen-

dants on a multi-count indictment charging

violations of the federal obscenity

laws. Thereafter, Sovereign News Company

moved in the Sixth Circuit Court of

Appeals to vacate an earlier judgment dis-

missing appeals from this court's denial

of the company's motion to return property

seized from its premises in searches con-

ducted on March 19 and March 26, 1975. On

September 21, 1978, the Court of Appeals

entered an order denying the motion, but

without prejudice to the right of

appellant to renew its motion in the

district court for the recovery of

its property alleged to have been

seized unlawfully and unconstitu-

tionally by federal agents, and in

event of the denial of said motion

by the district court, to perfect an

appeal to this court from such

denial.

Subsequently, Sovereign News renewed

its motion in this court for a return of

property. At a motion hearing on January

18, 1980 before this court, it was dis-

closed that following the jury's acquittal

of the defendants, all films and magazines

seized in the searches of March 19 and

March 26, 1975 were returned by the FBI to

Sovereign News Company. At issue now are

business records that were obtained in the

1975 searches and retained by the FBI.

The original Rule 4l(e) motion to

return property of Sovereign News Company

was first heard on September 12, 1975 at

which time, among other things, the court

A-43

determined that it had jurisdiction to

proceed.

After an amended motion for a return of

property was filed, hearings, conducted on

all or parts of 12 days, began on

September 26, 1975 and terminated on

October 14, 1975. Magistrate Herbert T.

Maher, who issued the two search warrants,

and agents who participated in the

searches and seizures were called as wit-

nesses by movant, Sovereign News

Company. The several grounds of movant's

amended Rule 41(e) motion were held un-

tenable by this court in several oral

rulings, culminating in a final ruling on

October 10, 1975.

On October 15, 1975, this court entered

an order declaring in part:

The court having rendered its oral

opinions in open ourt in favor of

the defendant, therefore,...IT IS

ORDERED that the motion of the

plaintiff for return of all seized

property is hereby denied.

However, a few seized items identified by

A-44

the court on Octoer 14, 1975 were ordered

returned,

With reference to the search warrant of

March 18, 1975, this court entered an oral

ruling on September 29, 1975. In part, it

was determined with reference to the films

and magazines examined by the Magistrate

that

he indeed had seen enough to deter-

mine in his judgment and within h.s

discretion that on a random basis or

on a spot-look basis, the materials

were obscene,

Next it was determined that the search

warrant "had enough specificity to meet

[the] Fourth Amendment requirement." It

was further determined that there was

"ample probable cause" for the issuance of

the search warrant.

With reference to the search warrant of

March 25, 1975, this court entered an oral

ruling on September 30, 1975. It was con-

cluded

that there was sufficient basis...

provided...the Magistrate to focus

searchingly on the issue of obscen-

A-45

ity as to the identified materials

that were to be the subject of the

new search warrant that was being

requested.

Further, it was determined "that probable

cause existed for the issuance of the

second search warrant."

At the outset of its oral ruling of

October 10, 1975, it was observed:

As the principal remaining grounds

of its motion for the return of

property, plaintiff Sovereign News

Company asserts: 4. the warrant

was a general warrant; 5. the

lengthy search of everything on

plaintiff's multi-level premises was

a general, exploratory and unreason-

able search.

The same motion had been filed as to

each search. Examining "the chief thrust

of plaintiff's argument with reference to

items 4. and 5. of its motion," it was

noted:

In the course of the first search

agents assigned to searching for

films and magazines made notes of

the titles and locations of certain

films, magazines, and business

records observed by the agents but

not physically seized.

hel6

These notations and the explicit sex

depicted on the film boxes served as the

basis for the affidavit on which the

second search warrant was issued. The

government relied on the "plain view"

doctrine in justifying the acts of its

agents. Plaintiff Sovereign News insisted

that the "plain view" doctrine was not

available when First Amendment considera-

tions are present. This threshold objec-

tion was rejected. Likewise, the court

determined that, contrary to movant's

contention, the agents' notations of items

"observed but not physically seized during

the course of the first search," consti-

tuted "mental impressions," not

"seizures"; but even if they constituted

seizures, they were "based on probable

cause and were reasonable under all the

circumstances."

Upon the "composite testimony," it was

found

>

1

47

that the disclosure of these films

and magazines was not the product of

a general exploratory search.

Rather, the agents came upon these

items while searching for the films

and magaziens listed on Exhibit A of

the first search warrant.

In further sustaining the aptness of

the "plain view" doctrine in this situa-

tion, it was determined:

Since the incriminating evidence was

immediately apparent to the agents,

there was no possibility for the

"plain view" doctrine to be abused

so as "to extend a general explora-

tory search from one object to

another until something incrimin-

ating at last emerges." Coolidge v.

New Hampshire, 403 U.S. 443, 4 nie

(1971).

The record refuted the claim of a

"general, exploratory and unreasonable

search." The evidence disclosed that with

reference to magazines and films, the

searchs of March 19 and 26 were confined

to the specific magazines and films iden-

tified on the respective Exhibit A of each

warrant. Thus, there was no searching for

magazines other than those identified on

the respective Exhibits A of the two

A-48

warrants. | Moreover, no film or magazine

was seized unless business records relat-

ing to it, including documents of inter-

state shipment of the film or magazine

were located and seized. With reference

to the business records seized this court

observed in its oral opinion of October

10, 1975:

the court has had an opportunity to

examine the business records covered

by the 12 inventory items of the

first search and the 151 inventory

items of the second search. Viewed

against the undisputed volume of

business records actually present on

the premises, the smali percentage

of these records seized during the

first search refutes the claim that

a general or exploratory search was

undertaken by the government.

l1. In the first search, all 11 films

identified in Exhibit A ere seized; but

only 44 of the 49 magazines were located

and seized. In the second search warrant,

Exhbit A identified 69 titles of eight

millimeter movies "observed in plain

view." Only 24 movies from this list were

actually seized. The government explained

that no movie was seized unless business

records relating to it, including

documents of interstate shipment of the

film, were located and seized. Of the 13

magazines listed in Exhibit A, only seven

were seized. No other films or magazines

were seized in either search.

The much larger quantities seized

on the second search was justified

under the several items on the

second search warrant. And particu-

larly I refer to the language "to

also include documents reflecting

the corporate structure of Sovereign

News Company and any of its affili-

ate companies,

This language is deemed suffici-

enty particularized to justify the

many records seized on the second

search that, as this court has

observed, concern the obviously far-

flung and intricate corporate struc-

ture of Sovereign News and its

affiliates.

At the hearing of January 18, 1980,

this corut reaffirmed each of its rulings

made in the oral rulings of September and

October, 1975.

As seen, Sovereign News, in its origi-

nal motion for return of property, did

assert that each warrant was a "general

warrant." However, the argument now

advanced in support of that same claim was

not made in connection with the original

motion. 2

Stet te et ee ee

2. On Monday, October 6, 1975, the

court put on the record the issues to be

(Footnote Continued)

A-50

Sovereign News now argues that because

of overbroad language relating to the

seizure of obscene materials, the warrant

of March 25, 1975 is a general warrant,

invalid on its face. This invalidity, it

is urged, tainted and illegalized the

March 26 search and seizure of films,

magazines and business records. Sovereign

News concedes, however, that the films and

magazines seized on March 26, 1975 were

limited to magazines and films specifi-

cally identified in Exhibit A of the

warrant of March 25, 1975. Moreover,

Sovereign News does not assert, nor would

the record support a claim, that pursuant

resolved "in connection with the charge

that each search alone and in combination,

both searches, were general searches and,

therefore, invalid." Thus, the discussion

related to the general search claim. The

"general warrant" argument now made was

not one of the arguments then mde by

counsel for Sovereign News. Although this

reference of October 6, 1975 is offered in

explanation of the absence of an earlier

ruling on the issue now raised, it is not

intimated that Sovereign News has waived

the right to now assert a claim of facial

invalidity of the warrant of March 25,

1975.

A-51

to the alleged general warrant language of

the March 25 warrant, any search for

unidentified magazines and films was made.

I.

The Mareh 18 warrant states that "there

is now being concealed certain property,

namely"

obscene, lewd, lascivious and filthy

magazines and motion picture films

(specifically listed in Exhibit A

attached to this warrant) and [cate-

gories of business records].

Seizure of the specifically listed

magazines and motion picture films

is to be limited to three (3) evi-

dentiary copies.

The warrant of March 25, 1975 described

the "concealed" property as follows:

obscene, lewd, lascivious and filthy

magazines and motion picture films,

included, but not limited to, the

items listed in Exhibit A attached

to this search warrant, and [cate-

gories of business records].

Seizure of the magazines and motion

picture films and other magazines

and movies of the same kind and

nature is to be limited to three (3)

evidentiary copies

to also include documents

reflecting the corporate

structure of Sovereign News

A-52

Company and any of its

affiliate companies,

Thus, the magazines and films permitted

to be seized by the warrant of March 18

are those specifically listed in attached

Exhibit A (ll titles of eight-millimeter

movies and 49 magazines). In contrast,

the magazines and films permitted to be

seized by the warrant of March 25 are

expressly not limited to those specifi-

cally listed in attached Exhibit A (69

titles of eight-millimeter movies and 13

magazines). The warrant also identifies

as subject to seizure "other magazines and

movies of the same kind and nature."3

3. Examined by counsel for Sovereign

News, Magistrate Maher answered, "That is

correct," when he was asked, "So by that

warrant, you authorized the search for all

of those films [on Exhbit A] plus others

which are obscene; is that not correct?",

and "You also authorized in that search

warrant the seizure of other obscene,

lewd, lascivious, and filthy magazines

other than those listed, did you not?"

It is not suggested that the Magistrate

transmitted his intent to any of the

agents who conducted the search. His

testimony after the event can neither add

to nor subtract from the meaning conveyed

(Footnote Continued)

A-53

As to the magazines and films listed in

Exhibit A of each warrant, the agent was

given no discretion in selecting the

materials to be seized. The agent could

seize only the items listed. Unlike the

March 18 warrant, however, the warrant of

March 25 gave the agent some discretion in

selecting materials other than those

listed on the warrant's Exhibit A. If the

agent determined that some other film or

magazine was of the "same kind or nature"

as those on Exhibit A, he was authorized

by the warrant of March 25 to seize it.

Did the warrant of March 25 become

invalid because it supplementally granted

authority to seize magazines and films "of

the same kind and nature" as the magazines

and films specifically listed in Exhibit

A. An absolutist might say that since

this supplemental language does not "par-

ticularly" describe the"other magazines

and movies of the same kind and nature,"

by the wording of the warrants.

A-54

then the warrant was invalid under the

Fourth Amendment and should not have been

issued. But this is not all.

The purpose of the Fourth Amendent

requirement that a warrant "particularly

describ[e] the place to be searched, and

the persons or things to be seized" is to

prevent "general exploratory rummaging in

a person's belongings," Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971).

Unless a general search follows issuance

of a general warrant, the evil posed by

the general warrant does not material-

ize. All the more so there is a benign

effct if, as in this case, particularly

described commands of a warrant alone are

executed, while supplemental general

authority is neither recognized nor exe-

cuted by the officers and no general

search takes place,

When no nexus results between partial

overbroad language of a warrant and the

search for some property, an otherwise

A=55

valid search should not be invalidated.

What the Fourth Amendment prohibits is an

unreasonable search and seizure.

The agents did not search for any items

other than those expressly itemized in the

warrant of March 25. Since the warrant's

overbroad language did not produce a

corresonding general search, the nexus,

necessary to render the seizure invalid,

is missing in this case. It is therefore

concluded that this specific and confined

search did not otherwise become a general

search because of the supplemental, over-

broad language of the warrant that was

ignored and not implemented by the agents.

II.

Movant relies principally on Lo-Ji

Sales, Inc. v. New York, decided by the

Supreme Court on June ll, 1979, 47

U.S.L.W. 4670. In Lo-Ji, a Town Justice,

based on his viewing of two reels of film

purchased from Lo-Ji's "adult" book store

by a New York state police investigator,

A-56

and an affidavit of this investigator,

issued a warrant authorizing the search of

petitioner's store ad the seizure of other

copies of the two films exhibited to the

Town Justice. The affidavit asserted that

"similar" films and printed matter por-

traying similar activities could be found

on the premises, and that, in the affi-

ant's belief, "the items were possessed in

violation of the obscenity laws." The

affidavit requested the Town Justice to

accompany the investigator for the execu-

tion of the search warrant. The Town

Justice agreed to go. Accordingly, the

warrant contained a recital that author-

ized the seizure of "(t]he following items

which the court independently [on examina-

tion] has determined to be possessed in

violation of Article 235 of the [New York]

penal law...." No items were listed or

described following this statement at the

time the Town Justice signed the

warrant. The extra copies of the two

A-57

reels of films were the only "things to be

seized" that were described in the

warrant.

On arrival of the search party of

eleven at the store, the store clerk was

placed under arrest, an arrest warrant

having been issued by the Town Justice

before going to the store. Finding

probable cause after viewing several films

in the coin-operated projectors, the Town

Justice ordered 23 silent films seized.

After viewing other films (silent and

sound), he found probable cause and

ordered them seized. After examining some

magazines and finding probable cause, he

ordered these magazines, together with

other copies of the same or "similar"

magazines seized. In all, 397 magazines

were taken. Also, four hundred thirty-one

boxes of film were taken. The Town

Justice found probable cause based on the

pictures on the outside of the boxes which

pictures the clerk stated were representa-

A-58

tive of what the films showed.

All items seized were taken to a state

police barracks where they were inven-

toried. Each item was then listed on the

search warrant, and the completed warrant

was given to the Town Justice. The court

observed:

The warrant, which had consisted of

two pages when he signed it before

the search, by late in the day con-

tained 16 pages. It is clear,

therefore, that the particular

description of "things to e seized"

was entered in the document after

the seizure and impoundment of the

books and other articles.

After Lo-Ji Sales was charged with

violation of the New York state obscenity

law and before trial, a motion to suppress

all of the seized material was heard and

denied. Petitioner pled guilty, was

fined, and appealed the denial of the

motion to suppress. His appeals in the

New York appellate courts were unsuccess-

ful.

The Supreme Court reversed the judg-

ments of conviction. It found that the

A-59

procedure previously described was flawed

On two principal grounds: (1) "[t]his

search warrant and what followed the entry

on petitioner's premises are reminiscent

of the general warrant...against which the

Fourth Amendment was intended to protect";

and (2) the failure of the Town Justice to

manifest the "neutrality and detachment

demanded of a judicial officer when pre-

sented with a warrant application for a

search and seizure." There is no sugges-

tion by Sovereign News, nor would the

record support a claim, that Magistrate

Maher, who issued both the warrant of

March 18 and the warrant of March 25,

lacked neutrality and detachment. Never-

theless, for present purposes, the Supreme

Court's first ground for flawing the Lo-Ji

search and seizure is pertinent to the

present discussion,

After making the statement quoted

above, the court declared:

A-60

Based on the conclusory statement of

the police investigator that other

similarly obscene materials would be

Found at the store, the warrant left

it entirely to the discretion of the

officials conducting the search to

decide what items were likely

obscene and to accomplish their

seizure. The Fourth Amendment does

not permit such action. Roaden v.

Kentucky, 413 U.S. 496, 502 (1973);

Stanford v. Texas, [379 U.S. 476,

485 (1965)]; Marcus v. Search

Warrant, ,[367 Gules Fats Fan

(1961)].

Measured by Lo-Ji, the warrant of March

25 will be evaluated. Unlike the Town

Justice's warrant, the March 25 warrant

did not leave it Snbieely to the discre-

4. On their facts, none of the cited

cases are deemed to control the instant

case. Roaden v. Kentucky, 413 U.S. 496,

(1973), invalidated seizure of a film by a

sheriff who acted without a warrant.

Stanford v. Texas invalidated a general

search and seizure at petitioner's home of

"literary material" ("books, records,

pamphlets"), made pursuant to a warrant

(deemed to be a general warrant) that

failed to describe with particularity the

things to be seized. As in Marcus v.

Search Warrant, 367 U.S. 717 (1961), the

Court held the Fourth Amendment

requirement “that warrants must

particiularly describe the 'things to be

seized' is to be accorded the most

scrupulous exactitude when the things are

books, and the basis for their seizure is

the ideas they contain."

.-61

ba |

tion of the officials conducting the

search to decide what items were likely

obscene and to accomplish their seizure"

(cophasie added), Obviously, the specific

listing of magazines and films in Exhibit

A did not arm the officers with any dis-

cretion in executing that portion of the

March 25 warrant. Only the supplemental

discretionary portion of the March 25

warrant is deemed proscribed by the fore-

going language of Lo-Ji.°

It is not only that the Town Justice's

warrant was entirely a general warrant

that distinguishes Lo-Ji from this case.

As the Court in Lo-Ji made clear, the

general warrant, standing alone, was not

5. Although the March 25 warrant's

supplemental language enlarging the

property to be seized to include "other

magazines and movies of the same kind and

nature" is more restrictive than the

phrase “similarly obscene materials"

included in the affidavit, that led to the

conclusion that the warrant in Lo-Ji was

general, the supplemental language gave

the agents discretion to seize additional

items that "were likely obscene."

A-62

the basis of the Court's decision. It was

the “search warrant and what followed the

entry on petitioner's premises" that the

Court stated were “reminiscent to the

general warrant or writ of assistance of

the 18th century against which the Fourth

Amendment was intended to protect." In

contrast, in the present case, as seen in

part I, no search for "other" magazines or

films was made pursuant to the supplemen-

tary warrant language. Moreover, not a

Single magazine or film that was seized

during the search was obtained pursuant to

the supplementary discretionary language

of the warrant of March 25.

Movant Sovereign News also relies on

United States v. Burch, 432 F. Supp. 961

(D. Del. 1977), affirmed 577 F.2d 729 (3rd

Cir. 1978). In Burch, defendant, charged

with possession of automobile tires stolen

from an interstate shipment, was granted

Suppression of the tires on the ground

that they were seized in the course of an

A-63

illegal search. The warrant authorized

search of defendant Jaeger's van and his

garage for

automobile tires and a green 1975

Dodge van...and other unknown

articles which are believed and

reported to be stolen from Penn

Central Railroad....

In the search that followed, agents seized

"forty-two tires, a tool box, a power lawn

mower, ninety-six rolls of toilet tissue,

a portable radio, an electric generator

and several other items." Only the tires

were offered as evidence at the trial, the

other property being returned,

The court concluded "that a warrant

authorizing a search for ‘stolen property'

is repugnant to the Fourth Amendment,"

although the court recognized that the

warrant was specific in describing the

"automobile tires." The court did not

indicate whether he would have sustained

the motion to suppress the automobile

tires as evidence, as he did, had there

been no search for "unknown articles...

A-64

reported stolen" and had there been no

resulting extensive seizure of articles.

The government further argued that the

seizure of the tires should be upheld

since the warrant specifically described

these items. Dismissing this argument,

the court concluded that this specific

reference “afforded no protection to Mr.

Jaegers' right to be free from a general

search." The court reasoned:

The search which the warrant author-

ized and the search which in fact

occurred, waS no more narrow by

reason of the inclusion of that

reference then it would have been in

its absence.

The court's mention of Mr. Jaegers' “right

to be free from a general search" and the

court's reference to the "search which in

fact occurred" indicate that these factors

played a part in the court's suppression

of all evidence seized in the search. In

effect, the court held that the search

should be suppressed because a general

search followed the issuance of a general

warrant. Because it is not factually

apposite to the present case, in this

court's view, Burch will not be followed.

Movant's counsel cite Burch for the

following proposition: "Nor can the fact

that the seizing officers may have

selected more narrowly than an overbroad

warrant permitted them to do, dilute the

Fourth Amendment violation." This is an

incorrect reading of Burch. As the Burch

analysis shows, the “seizing officers" did

not limit their search to the specifically

described automobile tires. Seizing

numerous items as "unknown articles...

reported to be stolen from Penn-Central

Railroad," they selected more broadly

"than [the] overbroad warrant permitted

them to do."

Also cited in support of the foregoing

391 U.S. 543 (1967), and Byars v. United

States, 273 U.S. 28 (1926). Byars, id.,

at 29, followed in Bumpers, id., at 548,

A-66

holds that, "A search prosecuted in viola-

tion of the Constitution is not made

lawful by what it brings to light...." In

this case, however, the court is not

holding the search lawful because of what

was actually seized pursuant to the

warrant of March 25 but rather because the

identified in the warrant of March 25.

IIfl.

Sovereign News agrees that if the

search of March 26 was legal, its motion

for return of copies of the business

records seized in that search now should

not be granted. Concluding that the

searches of March 19 and March 26 were

valid, movant's motion for return of

copies of business records is denied.

IT IS SO ORDERED,

/s/ William K. Thomas

United States District Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sovereign News Co.

Plaintiff

Civil Action

vs

)

)

)

)

)

) Number C75-620

United States of )

America )

)

)

Defendant ORDER

This matter having

been consolidated for hearing with C75-

621, and the court 'iaving rendered its

oral opinions in open court in favor of

the defendant, therefore, pursuant to

Rule 58, Federal Rules of Civil Procedure;

IT IS ORDERED that the

motion of the plaintiff for return of all

seized property is hereby denied. However

the court on October 14, 1975 ordered the

return of certain seized items, as

identified in open court, to which orders

the government acceded.

IT IS FURTHER ORDERED

that the complaint is hereby dismissed,

with prejudice, at plaintiff's costs.

/s/William K. Thomas

WILLIAM K. THOMAS,

U.S.D.C. Judge

A-69

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sovereign News Co,

Plaintiff

Civil Action

vs

Number C75-620

United States of

America

ee eee ee eee ae ee ee

Defendant ORDER

The Court having

rendered its opinions in favor of the

defendant, and the plaintiff having moved

to restrain the use of the seized

materials,

IT IS ORDERED that

the oral motion of the plaintiff to stay

and restrain the use of the seized

materials by the Government in the ongoing

Grand Jury investigation, pending appeal,

is hereby denied.

/s/William K. Thomas

WILLIAM K, THOMAS

U.S.D.C. Judge

A-70

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sovereign News Co.

Plaintiff

Civil Action

vs

Number C75-621

United States of

America

~_— eee Oe eee ee

Defendant ORDER

This matter having

been consolidated for hearing with C75-

620, and the court having rendered its

oral opinions in open court in favor of

the defendant, therefore, pursuant to Rule

58, Federal Rules of Civil Procedure;

IT IS ORDERED that

the motion of the plaintiff for return

of all seized property is hereby denied.

However the court on October 14, 1975

ordered the return of certain seized items,

as identified in open court, to which

orders the government acceded,

A-71

IT IS FURTHER ORDERED

that the complaint is hereby dismissed,

with prejudice, at plaintiff's costs.

/s/William K. Thomas

WILLIAM K. THOMAS

U.S.D.C. Judge

A-72

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sovereign News Co.

Plaintiff

Civil Action

vs

Number C75-621

United States of

America

~_— Oe Oe OO Oe Oe

Defendant ORDER

The Court having

rendered its opinions in favor of the

defendant, and the plaintiff having moved

to restrain the use of the seized materials,

IT IS ORDERED that the

oral motion of the plaintiff to stay and

restrain the use of the seized materials

by the Government in the ongoing Grand Jury

investigation, pending appeal, is hereby

denied,

/s/William K, Thomas

WILLIAM K. THOMAS

U. 8.06. Judge

A-73

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SOVEREIGN NEWS

COMPANY

2075 East 65th Street

Cleveland, Ohio 44103,

Plaintiff,

UNITED STATES OF

AMERICA

c/o United States

Attorney

Cleveland, Ohio

DAVID FELMAN

Special Attorney

U.S. Department of

Justice

Northern Ohio Bank

Building

Room 526

Cleveland, Ohio 44113

FREDERICK COLEMAN

U.S. Attorney

Room 400

U.S. Court House &

Post Office

Cleveland, Ohio 44113

and

GEORGE E. GROTZ,

Special Agent

Federal Bureau of

Investigation

1240 East 9th Street

Cleveland, Ohio

Defendants.

A-74

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CASE NO. C75-620

JUDGE THOMAS

AMENDED MOTION FOR

RETURN OF PROPERTY

AND REQUEST FOR

HEARING

Plaintiff, Sovereign News Company,

hereby moves this Honorable Court,

pursuant to F.R. Crim. P. 4l(e), to order

returned to it all tangible and intangible

property, including but not limited to,

magazines, films, business records, and

personal records, as well as notes and

photographs taken, seized by agents of the

Federal Bureau of Investigation, U.S.

Postal Service and U.S. Customs Bureau,

at plaintiff's premises, situated at 2075

East 65th Street, Cleveland, Ohio, on

March 29, 1975. A copy of the inventory

provided plaintiff by said agents is

attached hereto as Exhibit A.

The search and seizure at issue here

proceeded pursuant to a search warrant

issued by U.S. Magistrate Herbert T.

Maher. A copy of this warrant is attached

hereto as Exhibit B.

Plaintiff contends that the search

and seizure violated its rights under the

First and Fourth Amendments to the U.S.

Constitution, as well as Rule 41 of the

Federal Rules of Criminal Procedure, for

many reasons, among which are the follow-

ing:

l. The affidavit on the basis of which

the warrant was issued does not establish

probable cause. (See Exhibit C). It

contains tips from two informants which

are critical to a finding of probable

cause that a federal crime involving

interstate transportation of allegedly

obscene materials had been committed. It

does not, however, establish that the

informants are credible or that their

information is reliable. The affidavit

therefore fails to pass the two-prong

test enunciated in Aguilar v. Texas, 378

U.S. 108 (1964) and explicated and ela-

borated upon in Spinelli v. United States,

393 U.S. 410 (1969).

2. The Magistrate did not focus

searchingly on the question of obscenity,

proof of which will be adduced at hearing.

The search therefore violated plaintiff's

First and Fourth Amendment rights.

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

quoting from Lee Art Theatre, Inc. v.

Virginia, 392 U.S. 636, 637 (1968);

see, Heller v. New York, 413 U.S. 483

(1973).

3. The search warrant is overbroad

and therefore a general warrant. For

example, it authorizes seizure of "records,

receipts, notations, bills of lading,

journals, ledgers, billing invoices,

inventories, and other documents reflect-

ing the importation, receipt and shipment

of the aforementioned obscene material

in interstate commerce or by the U.S.

Postal Service". (Emphasis supplied).

Because of the vagueness of the term

"reflecting" and the absence of any

limitation on the dates of the documents

whose seizure was authorized, the author-

ization of the warrant was overbroad,

and the warrant itself a "general warrant"

prohibited by the Fourth Amendment.

Stanford v. Texas, 379 U.S. 476, 481-482,

(1965); see Griffin v. Superior Court,

103 Cal. Rptr. 379, 26 Cal. App. 3rd 672

(1972); Aday v. Superior Court, 13 Cal.

Rptr. 415, 362 P.2d 47 (1961).

4. Twenty federal agents and two

officers of the Cleveiand police depart-

ment were on plaintiff's premises for

more than five hours and conducted a

general, roving and exploratory search.

For example, they opened hundreds of

cartons, unmarked as well as marked. They

perused virtually every business record

on the premises, and seized personal as

well as business records which were out-

side the scope of the authorization

contained in the warrant. They took

hundreds of photographs of the premises

and of everything and everyone present

at the premises. They recorded the names

of scores of films and magazines, some

of which were seized in a subsequent

search. They seized three copies of

every magazine and film listed on the

warrant, although one would have well

served their purpose. See, Kremen v.

United States, 353 U.S. 346 (1957);

Stanford v. Texas, supra, United States

v. Alexander, 428 F.2d 1169 (8th Cir.

1970). And the Cleveland police who

participated in the search were not

authorized by the warrant to do so.

5. The mass seizure conducted by the

federal and state agents was not presided

by an adversary hearing contrary to the

holdings of Marcus v. Search Warrant,

367 U.S. 717, 81 S. Ct. 1708 (1961), and

Quantity of Copies of Books v. Kansas,

378 U.S. 205, 84 S. Ct. 1723 (1964).

6. The affidavit on the basis of which

the warrant issued contained intentional

and material misrevresentations which

invalidate the warrant. See, e.g., United

States v. Carmichael, 489 F.2d 983, 988

(7th Cir. 1973) (en banc); United States

v. Thomas, 489 F.2d 664 (5th Cir. 1973).

7. And for such other and further

reasons as may appear at the hearing of

this matter.

WHEREFORE, plaintiff moves the Court

to schedule a hearing on the within motion

at the earliest practicable time, at

which hearing the plaintiff will produce

evidence of the allegations made in its

motion, and further moves the Court upon

the conclusion of such hearing to grant

its motion by issuance of an order

directing the defendants to return all

tangible and intangible property seized

at plaintiff's premises on March 19,

1975, including all photographs and

written notes made during or as a result

of said search.

Respectfully submitted,

/s/Bernard A. Berkman

BERNARD A. BERKMAN

CHARLES M. DELBAUM

BERKMAN, GORDON &

KANCELBAUM

2121 The Illuminating

Building

55 Public Square

Cleveland, Ohio 44113

781-5245

Attorneys for Plaintiff

SERVICE

A copy of the foregoing Motion for

Leave to Amend and Amended Motion for

Return of Property was served upon David

Felman, Special Attorney, U.S. Department

of Justice, Northern Ohio Bank Building,

Room 526, Cleveland, Ohio 44113; Frederick

A-81

Coleman, U.S. Attorney, Room 400, U.S.

Court House and Post Office, Cleveland,

Ohio 44113; and U.S. Attorney General,

Justice Department, Washington, D.C.,

this 10th day of September, 1975, by

depositing the same in the United States

mail, postage prepaid.

/s/Charles M. Delbaum

CHARLES M. DELBAUM

Attorney for Plaintiff

A-82

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN

EASTERN

SOVEREIGN NEWS

COMPANY

2075 East 65th Street

Cleveland, Ohio 44103,

Plaintiff,

UNITED STATES OF

AMERICA

c/o United States

Attorney

Cleveland, Ohio

DAVID FELMAN

Special Attorney

U.S. Department of

Justice

Northern Ohio Bank

Building

Room 526

Cleveland, Ohio 44113

FREDERICK COLEMAN

U.S. Attorney

Room 400

U.S. Court House &

Post Office

Cleveland, Ohio 44113

and

GEORGE E. GROTZ,

Special Agent

Federal Bureau of

Investigation

1240 East 9th Street

Cleveland, Ohio

Defendants.

DISTRICT OF OHIO

DIVISION

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

A-83

CASE NO. C75-621

JUDGE THOMAS

AMENDED MOTION FOR

RETURN OF PROPERTY

AND REQUEST FOR

HEARING

Plaintiff, Sovereign News Company,

hereby moves this Honorable Court, pursuant

to FR. Crim. P. 41(e), to order returned

to it all tangible and intangible proper-

ty, including but not limited to, maga-

zines, films, business records, and personal

records, as well as notes and photographs

taken, seized by agents of the Federal

Bureau of Investigation, U.S. Postal

Service and U.S. Customs Bureau, at

plaintiff's premises, situated at 2075

East 65th Street, Cleveland, Ohio, on

March 26, 1975. A copy of the inventory

provided plaintiff by said agents is

attached hereto as Exhibit A.

The search and seizure at issue here

proceeded pursuant to a search warrant

issued by U.S. Magistrate Herbert T. Maher.

A copy of this warrant is attached hereto

as Exhibit B.

Plaintiff contends that the search and

seizure violated its rights under the

A-84

First and Fourth Amendments to the U.S.

Constitution, as well as Rule 14 of the

Federal Rules of Criminal Procedure, for

many reasons, among which are the

following:

1. The affidavit on the basis of

which the warrant was issued does not

establish probable cause to believe that

the films and magazines whose seizure was

authorized had been transported in inter-

state commerce and a federal crime thereby

committed. The affidavit merely relates

that "numerous" magazines and films were

observed in plain view on plaintiff's

premises during the course of a previous

search conducted on March 19, 1975. (See

4 of the affidavit, Exhibit C, attached

hereto). Nothing in the affidavit estab-

lishes that they were in any way connected

with interstate transportation. Hence,

there was no probable cause to believe

a crime had been committed, and the

A-85

seizure was conducted in violation of the

Fourth Amendment.

2. The Magistrate did not focus

searchingly on the question of obscenity,

proof of which will be adduced at hearing.

The search therefore violated plaintiff's

First and Fourth Amendment rights. Roaden

Vv. Kentucky, 413 U.S. 496 (1973), quoting

from Lee Art Theatre, Inc. v. Virginia,

392 U.S. 636, 637 (1968); see, Heller

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

3. The search warrant is overbroad and

therefore a general warrant. For example,

it authorizes seizure of "records,

receipts, notations, bills of lading,

journals, ledgers, billing invoices,

inventories, and other documents reflecting

the importation, receipt and shipment of

the aforementioned obscene material in

interstate commerce or by the U.S. Postal

Service." (Exhibit B; emphasis supplied).

Because of the vagueness of the term

A-86

"reflecting" and the absence of any

limitation of the dates of the documents

whose seizure was authorized, the authori-

zation of the warrant was overbroad, and

the warrant itself a "general warrant"

prohibited by the Fourth Amendment.

Stanford v. Texas, 379 U.S. 476, 481-482

(1965); see Griffin v. Superior Court,

103 Cal. Rptr. 379, 26 Cal. App. 3rd 672

(1972); Aday v. Superior Court, 13 Cal.

Rptr. 415, 362 P. 2d 47 (1961).

In addition, the warrant authorized

seizure of "documents reflecting the

corporate structure of Sovereign News

Company and any of its affiliate companies."

The use of the vague terms "reflecting"

and "affiliate" render the warrant over-

broad,

4. The government conducted a general,

roving and exploratory search. For

example, they perused every record and

document on the premises and seized nearly

A-87

two thousand pages of business and personal

documents. The bulk of these were clearly

and beyond doubt outside the scope of the

authority of the warrant. Personal

correspondence and notes were seized,

including confidential communications

protected by the attorney-client privilege.

Other personal and confidential communi-

cations, documents and photographs, as

well as business records, were copied, but

not seized. See, Kremen v. United States,

353 U.S. 346 (1957); Stanford v. Texas,

supra; United States v. Alexander, 428

F.2d 1169 (8th Cir. 1970).

5. The search was also the fruit of

prior illegality. Simultaneously herewith,

plaintiff has filed a motion for return

of property seized on its premises a week

prior to the instant search, and has

asserted that the materials were seized

in violation of its constitutional rights.

As shown by the affidavit in the instant

A-88

matter, the warrant, search and seizure

at issue here are the fruits of the

previous search. By reason of the fact

that the initial search was illegal, the

fruits of that illegal search must also

be returned. Wong Sun v. United States,

371 U.S. 471 (1963). Furthermore, the

fruit of any individual items which were

illegally seized during the previous

search must also be returned. Ibid.

6. A mass seizure conducted by the

federal agents was not preceded by an

adversary hearing contrary to the holdings

of Marcus v. Search Warrants, 367 U.S. 717,

81S. Ct. 1708 (1961), and Quantity of

Copies of Books v. Kansas, 378 U.S. 205,

84 S. Ct. 1723 (1964).

7. And for such other and further

reasons aS may appear at the hearing of

this matter.

WHEREFORE, plaintiff moves the Court

to schedule a hearing on the within motion

A-89

at the earliest practicable time at which

hearing the plaintiff will produce evidence

of the allegations made in its motion,

and further moves the Court upon the con-

clusion of such hearing to grant its

motion by issuance of an order directing

the defendant to return all tangible and

intangible property seized at plaintiff's

premises on March 26, 1975, including all

photographs and written notes made during

or as a result of said search.

Respectfully submitted,

/s/Bernard A. Berkman

BERNARD A. BERKMAN

CHARLES M. DELMAUM

BERKMAN, GORDON and

KANCELBAUM

2121 The Illuminating

Building

Cleveland, Ohio 44113

781-5245

Attorneys for Plaintiff

A-90

SERVICE

A copy of the foregoing Motion for

Leave to Amend and Amended Motion for

Return of Property was served upon David

Felman, Special Attorney, U.S. Department

of Justice, Northern Ohio Bank Building,

Room 526, Cleveland, Ohio 44113; Frederick

Coleman, U.S. Attorney, Room 400, U.S.

Court House and Post Office, Cleveland,

Ohio 44113; and U.S. Attorney General,

Justice Department, Washington, D.C.,

this 10th day of September, 1975, by

depositing the same in the United States

mail, postage prepaid.

/s/Charles M. Delbaum

CHARLES M. DELBAUM

BERKMAN, GORDON &

KANCELBAUM

Attorney for Plaintiff

A-91

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF OHIO,

EASTERN DIVISION

UNITED STATES Docket No.

OF AMERICA

Case No.

vs.

Sovereign News Company

2075 East 65th Street

Cleveland, Ohio

SEARCH WARRANT

~— SOOO ee

To any Agent of the Federal Bureau of

Investigation or any Postal Inspector,

U. S. Postal Service

Affidavit(s) having been made before

me by Special Agent GEORGE E. GROTZ

that he has reason to believe that on

the premises known as Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio

in the Northern District of

Ohio there is now being concealed certain

property, namely obscene, lewd, lascivious

and filthy magazines and motion picture

films (specifically listed in Exhibit A

attached to this warrant) and records,

A-92

*.

receipts, notations, bills of lading,

journals, ledgers, billing invoices,

inventories, and other documents reflect-

ing the importation, receipt and shipment

of the aforementioned obscene material

in interstate commerce or by the U. S.

Postal Service. Seizure of the specifi-

cally listed magazines and motion picture

films is to be limited to three (3)

evidentiary copies.

**On March 14, 1975, U. S. Magistrate

HERBERT T. MAHER was presented with and

did examine copies of the magazines and

motion picture films listed in Exhibit A.

and as I am satisfied that there is

probable cause to believe that the property

so described is being concealed on the

person or premises above described and

that grounds for application for issuance

of the search warrant exist as stated in

the supporting affidavit(s).

A-93

You are hereby commanded to search

within a period of ten days (not to exceed

10 days) the person or place named for

the property specified, serving this

warrant and making the search in the day-

time (6:00 a.m. to 10:00 p.m.) and if the

property be found there to seize it,

leaving a copy of this warrant and receipt

for the property taken, and prepare a

written inventory of the property seized

and promptly return this warrant and bring

the property before /s/tierbert T. Maher

Federal Judge or magistrate

as required by law.

Dated this 18th day of March, 1975

/s/ Herbert T. Maher

Judge (Federal or State

Court of Record) or

Federal Magistrate

A-94

EXHIBIT A

The following eight (8) millimeter movies:

Lasse Braun presents Parisiana,

"Tour Eiffel", LB 37;

Lasse Braun presents Parisiana,

"Grand Prix", LB 38;

Shocking, by Lasse Braun,

"Cake Orgy", LB 40;

Shocking, by Lasse Brau (sic),

"Funny Priest," LB 41;

Shocking, by Lasse Braun,

"Psycho Doll", LB 42;

Pretty Girl Pictures presents,

"Hot Sucker", PG 21;

Esquire Finest Quality Film Productions;

"Pretty Girl", #25

Tropical, by Lasse Braun

"Paradise", LB 31;

Tropical, by Lasse Braun

"Limbo", LB 32;

Tropical, by Lasse Braun

"White Fantasies," LB 33.

The following magazines:

"Prince, #9"

"Casebook Volume 1, #3, Photographs

of unusual Sex Practices"

"Eroticon, #1;"

"Eroticon, #2;

"Sexploration", Volume 1;

"Sexploration", Volume 2;

"Sense", Volume 3, #3;

"Sense," Volume 2, #6;

"Sucking";

"Sexual Arousal - Oral Sex";

"Fucking Trios";

"Pleasure", Book 1;

A-95

"The Sex Family";

"Positions and Techniques";

"Hot Cunts";"

"Sucking and Fucking";

"Oral Love", #215

"Image", #216

"Eze Time", #217

"Sex Tech"

"Fun-Love Nympho"

"Sex Act", Book 1;

"Sex Act", Book 2;

"Fucking Couples", Volume #1;

"Nique," Book 1;

"Children of Love", Volume l,

"Sucking Sisters", Volume l,

"The Superstars of Porno";

"Rear Entry," Volume 1;

"Loving-Fucking", Volume 1;

"Foreplay";

"Casebook," Volume 2, #6;

"Answers," Volume 3, #1;

"Answers," Volume 3, #2;

"Answers," Volume 3, #3;

"Answers", Volume 3, #4;

"Response," Volume l, #4

"Response," Volume 3, #1;

"Response", Volume 3, #4;

"Sense", Volume 3, #4;

"Sex in Marriage", Volume 3,

"Sex in Marriage", Volume 3,

"Sex in Marriage", Volume 3,

"Sexscope", Volume 2, #5;

"Sexscope", Volume 2, #6;

"Sexscope", Volume 3, #1;

"Sexscope", Volume 3, #2;

"Sexscope", Volume 3, #3;

#1;

#1;

#1;

#2;

#3;

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF OHIO,

EASTERN DIVISION

Magistrate's

UNITED STATES Docket No.

OF AMERICA

Case No.

vs. at o'clock _M

Sovereign News Company AFFIDVAIT FOR

2075 East 65th Street

Cleveland, Ohio SEARCH WARRANT

~— Se

BEFORE HERBERT TO MAHER, Cleveland, Ohio

The undersigned being duly sworn deposes

and says:

That he has reason to believe that on

the premises known as Sovereign News Com-

pany, 2075, East 65th Street, Cleveland,

Ohio

in the Northern District of

Ohio there is now being concealed certain

property, namely obscene, lewd, lascivious,

and filthy magazines and motion picture

films, (specifically listed in Exhibit A

and attached to this affidavit), and

records, receipts, notations, bills of

lading, journals, ledgers, billing

invoices, inventories, and other documents

reflecting the importation, receipt and

shipment of the aforementioned obscene

material in interstate commerce or by the

U. S. Postal Service.* Seizure of the

specifically listed obscene, lewd, lasci-

vious and filthy magazines and motion

picture film is to be limited to three (3)

evidentiary copies,

which are evidence of violation of Title

18, United States Code, Sections 1461,

1462 and 1465.

And that the facts tending to establish

the foregoing grounds for issuance of a

Search Warrant are as follows:

See attached affidavit: Exhibit B

**On March 14, 1975, U.S. Magistrate

HERBERT T. MAHER was presented with and

did examine copies of the magazines and

motion picture films listed in Exhibit A.

/s/George E. Grotz

/s/Ronald E. Baranowski

A-98

Special Agent, FBI,

Sworn to before me, and subscribed in

my presence, March 18, 1975

/s/Herbert T. Maher

HERBERT T. MAHER

United States Magistrate

A-99

EXHIBIT A

The following eight (8) millimeter movies:

Lasse Braun presents Parisiana,

"Tour Eiffel", LB 37;

Lasse Braun presents Parisiana,

"Grand Prix", LB 38;

Shocking, by Lasse Braun,

"Cake Orgy", LB 40;

Shocking, by Lasse Brau (sic),

"Funny Priest," LB 41;

Shocking, by Lasse Braun,

"Psycho Doll", LB 42;

Pretty Girl Pictures presents,

"Hot Sucker", PG 21;

Esquire Finest Quality Film Productions;

"Pretty Girl,” #25

Tropical, by Lasse Braun

"Paradise", LB 31;

Tropical, by Lasse Braun

"Limbo", LB 32;

Tropical, by Lasse Braun

"White Fantasies," LB 33.

The following magazines:

"Prince, #9"

"Casebook Volume 1, #3, Photographs

of unusual Sex Practices"

"Eroticon, #1;"

"Eroticon, #2;"

"Sexploration", Volume 1;

"Sexploration", Volume 2;

"Sense", Volume 3, #3;

"Sense," Volume 2, #6;

"Sucking";

"Sexual Arousal - Oral Sex";

"Fucking Trios";

"Pleasure", Book 1;

A-100

"The Sex Family";

"Positions and Techniques";

"Hot Cunts";

"Sucking and Fucking";

"Oral Love", #215,

"Image", #216

"Eze Time", #217

"Sex Tech"

"Fun-Love Nympho"

"Sex Act", Book 1;

"Sex Act", Book 2;

"Pucking Couples", Volume #1;

"Nique," Book 1;

"Children of Love", Volume l, #1;

"Sucking Sisters", Volume l, #1;

"The Superstars of Porno";

"Rear Entry," Volume 1;

"Loving-Fucking", Volume 1;

"Foreplay";

"Casebook," Volume 2, #6;

"Answers," Volume 3, #1;

"Answers," Volume 3, #2;

"Answers," Volume 3, #3;

"Answers," Volume 3, #4;

"Response," Volume l, #4;

"Response", Volume 3, #1;

"Response", Volume 3, #4;

"Sense", Volume 3, #4;

"Sex in Marriage", Volume 3, #1;

"Sex in Marriage", Volume 3, #2;

"Sex in Marriage", Volume 3, #3;

"Sexscope", Volume 2, #5;

"Sexscope", Volume 2, #6;

"Sexscope", Volume 3, #1;

"Sexscope", Volume 3, #2;

"Sexscope", Volume 3, #3;

"Sexscope", Volume 3, #4;

A-101

RPFIDAVI?T

1. I GEORGE E. GROTZ, hereinafter

referred to as Affiant A, am employed as

a Special Agent of the Federal Bureau of

Investigation and I have continually

held that position for the past three and

a half years. Affiant A has been assigned

to the investigation of Interstate Trans-

portation of Obscene Matter cases within

the jurisdiction of the Northern District

of Ohio since December, 1973 and has super-

vised an investigation involving the

Interstate Transportation of Obscene

Matter by the Sovereign News Company,

2075 East 65th Street, Cleveland, Ohio,

since December, 1973. In accordance with

this assignment, Affiant A has received

reports of investigation conducted by

other Special Agents of the Federal Bureau

of investigation and has had this infor-

mation available to him for his utilization

A-102

in this investigation. This information

includes the results of physical surveil-

lances, information from telephone company

records and information obtained from

confidential informants. These confiden-

tial sources of information have provided

reliable information on numerous occasions

in the past which has been corroborated

by subsequent investigation of Special

Agents of the Federal Bureau of Investiga-

tion.

2. Affiant A adopts and incorporates

the information contained herein as his

affidavit. Affiant A has read this

affidavit and is satisfied the information

contained herein is reliable.

3. RONALD E. BARANOWSKI, hereinafter

referred to as Affiant B is employed as

a Postal Inspector assigned to the Postal

Inspector's Office, United States Postal

Service, Cleveland, Ohio and has continu-

A-103

ally held that position for the past three

years. Affiant B has been assigned to the

investigation of postal violations regard-

ing the transmittal of obscene matters

through the mail for the past two years.

In accordance with this assignment,

Affiant B has worked closely with Affiant

A with regards to the investigation of

the Interstate Transportation of Obscene

Matter by the Sovereign News Company, 2075

East 65th Street, Cleveland, Ohio.

Included in the information contained in

this affidavit is the results of information

obtained from the United States Postal

Service records. Affiant B adopts and

incorporates the information contained

herein as his affidavit. Affiant B has

read this affidavit and is satisfied that

the information contained herein is

reliable.

4. Based upon the information con-

tained herein, Affiants A and B have

reason to believe and do believe that

A-104

there is probable cause that REUBEN STURMAN,

SAMUEL JOSEPH and others as yet unknown

doing business as the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio are now committing and will continue

to commit offenses against the United

States. The aforementioned Sovereign

News Company located at 2075 East 65th

Street, Cleveland, Ohio under the manage-

ment and direction of REUBEN STURMAN,

SAMUEL JOSEPH and others unknown at this

time, have imported or have caused to be

imported into the United States obscene,

lewd, lascivious and filthy material

in the form of books, magazines and

motion-picture films. All in violation

of Title 18, United States Code, Section

1462. In addition, the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio has knowingly used the United States

Postal Service for the mailing, carriage

A-105

in the mails or delivery of obscene,

lewd, lascivious and filthy material. All

in violation of Title 18, United States

Code, Section 1461. Further, Affiants

A and B have reason to believe and do

believe that REUBEN STURMAN, SAMUEL JOSEPH

and others as yet unknown doing business

as the Sovereign News Company, 2075 East

65th Street, Cleveland, Ohio have knowingly

transported in Interstate Commerce via

the United Parcel Service, an interstate

express company, or other common carrier

obscene, lewd, lascivious and filthy

material for the purpose of sale and dis-

tribution, and will continue to commit

said transportation of obscene lewd, las-

civious, indecent and filthy material for

sale and distribution in violation of

Title 18, United States Code, Section 1465.

5. On May 2, 1974, Affiant A determined

through a confidential source of informa-

tion, hereinafter referred to as confiden-

tial source number one, who resided in the

A-106

Columbus, Ohio area, that REUBEN STURMAN,

doing business as the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio, is one of the largest distributors

of obscene materials in the United States.

Confidential source number one advised that

he had been purchasing obscene material

from REUBEN STURMAN since 1965 and had

observed an individual, known to him as

HARVEY HORWITZ, an employee of Sovereign

News Company in Cleveland, to deliver

obscene material to various adult book-

stores in the Columbus, Ohio area.

Confidential source number one further

advised that REUBEN STURMAN controls

Sovereign News Company and that STURMAN

sets the policy for the type of material

that he handles. Confidential source

number one advised that STURMAN has inten-

tionally removed his name from any of the

corporate records of the Sovereign News

A-107

Company and from any of the other affili-

ated or subsidiary companies associated,

or owned or controlled by Sovereign News

Company. Confidential source number one

stated REUBEN STURMAN has intentionally

removed his name from associations with

the Sovereign News Company in order to

disguise his ownership and managerial

role in the Sovereign News Company. Confi-

dential source number one further advised

that HORWITZ, often accompanied by an

individual who confidential source number

one believed was called JOHN, and whose

last name he did not know, would supply

the adult bookstores in Columbus, Ohio

once a week with obscene material. This

obscene material was in the form of

magazines, paperback novels and eight

millimeter films. According to confidential

source number one, this material vividly

portrayed obscene acts of sexual inter-

course, acts of fellatio and cunnilingus.

A-108

Affiant A has examined samples of the

aforementioned obscene materials and has

found that confidential source number one's

description was accurate. According to

confidential source number one, HORWITZ

and JOHN (last name unknown), after

supplying the bookstores in Columbus, would

on certain occasions travel to other Ohio

towns and would thereinafter travel

interstate to supply obscene material to

adult bookstores in the Indianapolis,

Indiana area. Confidential source number

one advised that much of the obscene

material furnished to him by the Sovereign

News Company, was obtained by the

Sovereign News Company from Parliament

News Agency in Chatsworth, California.

6. On May 2, 1974, Affiant A, in the

presence of Special Agents ROBERT K.

RESSLER and PHILLIP R. KERBY, interviewed

confidential source number one. At the

time of the interview, Special Agent

A-109

ROBERT K. RESSLER was assigned to the

Cleveland Division of the Federal Bureau

of Investigation and Special Agent PHILLIP

R. KERBY was assigned to Columbus Resident

Agency, Cincinnati, Ohio Division of the

Federal Bureau of Investigation.

7. On May 17, 1975, Special Agent

PHILLIP R. KERBY advised Affiant A that

he, Special Agent KERBY, had been in

contact with confidential source number

one and that according to confidential

source number one HARVEY HORWITZ, the

aforementioned employee of Sovereign News

Company, would be bringing a shipment of

obscene magazines and films to Columbus,

Ohio on May 20, 1974. Special Agent

KERBY advised Affiant A that according

to confidential source number one HORWITZ

would be driving a white truck, current

Ohio license 5H393.

8. On May 20, 1974, Special Agents of

the Federal Bureau of Investigation com-

A-110

menced a physical surveillance of 4516

Birchwold Road, South Euclid, Ohio the

known residence of HARVEY HORWITZ. HORWITZ

was observed to leave his residence

carrying a clothes bag and a suitcase.

HORWITZ placed both of these items in the

trunk of a beige Plymouth, current Ohio

license PP5725. Ohio license PP5725 was

registered to FRED HIRSCH, known to

Affiant A as also being employed by the

Sovereign News Company, 2075 East 65th

Street, Cleveland, Ohio. HORWITZ entered

the Plymouth vehicle bearing license

PP5725 driven by an unknown white

male and thereafter proceeded to the

Sovereign News Company, 2075 East 65th

Street, Cleveland, Ohio. At Sovereign

News Company, HORWITZ exited the vehicle

and was observed to enter Sovereign News

Company carrying his suitcase and clothes

bag. Shortly thereafter, a white Dodge

A-1lll

truck bearing current Ohio license 5H393

being driven by HORWITZ exited the ware-

house section of Sovereign News Company.

Shortly thereafter, HORWITZ, accompanied

by a white male, whose identity at the

time was unknown, was observed continu-

ously driving the truck via Interstate 71

to Columbus, Ohio. The individual

accompanying HORWITZ was subsequently

identified as JOHN BLANKENSHIP, an employee

of Sovereign News Company,

9. A physical surveillance by Affiant

A and other Special Agents of the Federal

Bureau of Investigation on May 20, 1974

of the white Dodge truck 5H393 was continued

during its travel in the Columbus, Ohio

area. HORWITZ and BLANKENSHIP were

observed to park this vehicle adjacent

to numerous adult bookstores in Columbus,

Ohio. HORWITZ and BLANKENSHIP were

observed to carry several boxes from the

A-112

truck into these bookstores. The truck

was surveilled continuously on May 20,

1974 and was observed to travel in the

early evening hours to Dayton, Ohio where

HORWITZ and BLANKENSHIP were observed to

deliver cartons from the truck to several

adult bookstores in that city. Affiant A

further states that according to infor-

mation subsequently provided by Special

Agents of the Cincinnati and Indianapolis

Divisions of the Federal Bureau of Inves-

tigation, HORWITZ and BLANKENSHIP spent

the night of May 20-21, 1974 in the Dayton,

Ohio area at the Holiday Inn located at

the junction of West lst Street and Inter-

state 75. The truck was placed under

surveillance on the morning of May 21,

1974 where the occupants of the vehicle

were observed to supply two additional

adult bookstores in the Dayton, Ohio area.

The truck was surveilled continually from

A-113

Dayton, Ohio to Norwood, Ohio, Cincinnati,

Ohio and on to Indianapolis, Indiana. At

Indianapolis, Indiana the truck was

observed to stop at other adult bookstores

and HORWITZ and BLANKENSHIP were observed

unloading cartons at these locations. The

bookstores at which the truck stopped and

made deliveries in the Indianapolis area

were the Trans Media Bookstore, 3212 East

Michigan, Indianapolis, Indiana, Town and

Contry Adult Books, 4457 North Keystone,

Indianapolis, Indiana and Harem Bookstore,

2208 North Meridian, Indianapolis, Indiana.

10. On May 22, 1974, confidential

source number one provided Special Agent

PHILLIP R. KERBY with copies of the

following materials which confidential

source number one advised had been deliv-

ered to the Mid-America Bookstore, 14

East Town Street, Columbus, Ohio by

HORWITZ and BLANKENSHIP on ‘May 20, 1974:

A-114

One eight millimeter film

entitled "Naughty Lady",

One eight millimeter film

entitled "Centurions",

One eight millimeter film

entitled "Fantasy Four",

One eight millimeter film

entitled "Blue Movie", #1l,

One magazine entitled "Private",

One magazine entitled "New

Sex Trends", #6,

One magazine entitled "Love

Machines Annual",

One magazine entitled "Full

Swing #7, A study of Group Sex",

One newspaper entitled "Screw"

ll. Pursuant to Affiant A's instruc-

tions on May 24, 1974, Special Agent

BENEDICT B. CRUISE, Indianapolis, Division

of the Federal Bureau of Investigation,

entered the Harem Bookstore, 2208 North

Meridian, Indianapolis, Indiana and

purchased a magazine entitled "Love

Machines Annual." On the same date,

Special Agent JAMES G. WINTERS, also

assigned to the Indianapolis Division of

A-115

the Federal Bureau of Investigation,

entered the Town and Country Adult Booxks,

4457 North Keystone, Indianapolis, Indiana

and purchased a magazine entitled "New

Sex Trends", #6. Also on the same date,

Special Agent JAMES G. WINTERS entered the

Trans Media Bookstore, 3212 East Michigan

Street, Indianapolis, Indiana and purchased

a magazine entitled "Full Swing #7, A

Study of Group Sex."

12. The materials supplied to Special

Agent KERBY by confidential source number

one were shipped by Special Agent KERBY to

Affiant A for examination and identifica-

tion purposes. Affiant A herein states

that the magazines purchased by Special

Agents WINTERS and CRUISE from the afore-

mentioned adult bookstores in paragraph 11

were also shipped to affiant A for pur-

poses of examination and indentification

(sic).

A-116

13. Upon receipt of the material

mentioned in paragraphs 10 and ll, Affiant

A compared the content of the magazines

and describes the magazines as follows:

"New Sex Trends" #6 is a 68 page magazine

containing photographs in black and white

and color vividly portraying obscene

sexual activity between males and females.

This sexual activity depicts sexual inter-

course and includes the penetration of a

male penis into the vagina of a female

and in addition depicts acts of fellatio,

cunnilingus, anal sexual intercourse,

stimulation with an artificial phallus

or dildo and scenes of male ejaculation.

"Full Swing #7, A Study of Group Sex"

is a 68 page magazine of black and white

and color photographs vividly portraying

sexual activity between males and females.

The sexual activity depicts acts of

fellatio, cunnilingus, anal intercourse

and ejaculation. "Love Machines Annual"

A-117

is a 120 page magazine containing black

and white and color photographs of males.

The photos depict nude and partially nude

males engaged in homosexual activity.

14. On June 14, 1974, the magazines

"New Sex Trends, #6; "Love Machines Annual"

and "Full Swing #7, A Study of Group Sex",

which were provided by confidential

source number one, along with the magazines

purchased by Special Agents JAMES G.

WINTERS and BENEDICT B. CRUISE in Indiana-

polis, Indiana, were transmitted to the

FBI Laboratory, Washington, D.C. for pur-

poses of analysis. On July 5, 1974, the

FBI Laboratory advised that a laboratory

comparison of the magazines provided by

confidential source number one and those

which were purchased in Indianapolis,

Indiana, by Special Agents of the Federal

Bureau of Investigation, revealed that

these magazines were identical copies

prepared on the same plates.

A-118

15. On January 17, 1975, Affiant A

was contacted by Special Agent FREDERICK

R. DAULTON, Fort Worth, Texas, Resident

Agency, Dallas Division of the Federal

Bureau of Investigation and advised by

Special Agent DAULTON that he, DAULTON,

had developed information from a confi-

dential source, hereinafter referred to

as confidential source number two, that

Sovereign News Comapny, 2075 East 65th

Street, Cleveland, Ohio, was shipping

obscene material from Cleveland, Ohio,

to Forth Worth, Texas, by utilizing the

facilities of the United Parcel Service,

an interstate carrier. Special Agent

DAULTON advised Affiant A that confidential

source number two had furnished reliable

information in the past which had been

corroborated through independent investi-

gation. Special Agent DAULTON advised

that according to confidential source

number two a shipment of obscene magazines

A-119

had been sent via United Parcel Service

frum the Sovereign News Company, Cleveland,

Ohio, on October 24, 1974, to Webster's

Adult Bookstore, 3522 Hemphill, Forth Worth,

Texas. The interstate shipment was a

C.O.D. shipment in the amount of $90.45.

Special Agent FREDERICK R. DAULTON further

advised Affiant A, that according to

confidential source number two, a second

shipment of obscene matter was received

via United Parcel Service from the

Sovereign News Company at Webster's Adult

Bookstore, 3522 Hemphill, Forth Worth,

Texas, On November 12, 1974. This was

also a C.0.D. shipment in the amount of

$174.56.

16. Special Agent FREDERICK DAULTON

advised Affiant A that he observed check

number 148 drawn on the Tarrant State

Bank, Fort Worth, Texas dated October 29,

1974, paid to the order of Sovereign News

Company in the amount of $90.45. This

A-120

check was drawn on the Tarrant State Bank

account number 193-644-2. Special Agent

DAULTON further advised that he observed

check number 165 also drawn on the Tarrant

State Bank, account number 193-644-2,

dated November 12, 1974, was payable to

Sovereign News Company in the amount of

$174.56. In addition, Special Agent

DAULTON advised Affiant A that he received

from confidential source number two a

copy of a magazine entitled "Prince", #9

and a copy of "Casebook, Volume l, #3,

Photographs of Unusual Sex Practices".

Special Agent DAULTON advised Affiant A

that confidential source number two stated

to him that both of these magazines

were contained in the October 24, 1974

shipment sent from the Sovereign News

Company, Cleveland, Ohio via United Parcel

Service and received at Webster's Adult

Bookstore on October 29, 1974.

A-121

17. On February 6, 1975, Special Agent

DAULTON telephonically advised Affiant A

that he shipped the magazines entitled

"Prince", #9 and "Casebook", described in

paragraph 16 to Affiant A. These maga-

zines were subsequently received by Affiant

A and upon examination by Affiant A it

was determined that these magazines

contained black and white and color

photographs of obscene sexual activity.

This sexual activity vividly portrayed

acts of fellatio, cunnilingus and ejacula-

tion to include the insertion of a male

penis into the mouth and vagina of a female.

18. On January 30, 1975, Affiant A

reviewed the records of United Parcel

Service in Cleveland, Ohio. These records

were reviewed in the presence of WILLIAM

A. SCHULTZ, District Loss Prevention

Manager, Northern Ohio District, United

Parcel Service. SCHULTZ advised Affiant

A that United Parcel Service account

number 4-84-909 was assigned by United

A-122

Parcel Service to the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio. SCHULTZ advised that a United

Parcel Service driver was assigned to pick

up packages at that location once a day,

Monday through Friday. The pick-up

record of 436-736-15 dated October 24,

1974 for account number 4-84-909 was

reviewed by Affiant A and it was revealed

that according to this record one package

weighing 22 pounds was shipped from

Sovereign News Company, 2075 East 65th

Street to Webster's Adult Bookstore,

3522 Hemphill, Forth Worth, Texas, 76110.

The package was shipped C.O.D. at a cost

of $90.45. The United Parcel Service

pick-up record number 436-736-27 dated

October 29, 1974 for account number 4-84-

909 was also reviewed and this record

confirmed that a package weighing 34

pounds was shipped from the Sovereign News

Company, 2075 East 65th Street on October

A-123

29, 1974 to Webster's Adult Bookstore,

3522 Hemphill, Forth Worth, Texas. This

was a C.0O.D. transaction in the amount of

$174. 56.

19. On February 13, 1975, Special Agent

FREDERICK R. DAULTON advised Affiant A

that according to information from

confidential source number two, confiden-

tial source number two had telephonically

contacted SAM JOSEPH at the Sovereign

News Company, 2075 East 65th Street,

Cleveland, Ohio by telephoning number

216-391-3452 on February 12, 1975.

According to published records of the

Ohio Bell Telephone Company, telephone

number 216-391-3452 is a published listing

to the Sovereign News Company at 2075

East 65th Street, Cleveland, Ohio.

Special Agent DAULTON advised that

according to instructions from SAM JOSEPH

to confidential source number two, JOSEPH

would ship eight each eight millimeter

films to confidential source number two,

A-124

pending receipt of payment by JOSEPH in

the amount of $70.50. On February 13,

1975, Special Agent DAULTON further

advised Affiant A that he had observed

confidential source number two obtain

a cashiers check number 102809 drawn on

the Seminary State Bank, 116 East Seminary

Drive, Forth Worth, Texas in the amount

of $70.50. Special Agent DAULTON advised

that he observed the source place this

check in an envelope addressed to

Sovereign News Company, 2075 East 65th

Street, Cleveland, Ohio, attention SAM

JOSEPH and deposit it in a mailbox.

20. On February 20, 1975, Affiant A

was advised by Special Agent FREDERICK

R. DAULTON that he received from confiden-

tial source number two a package which

confidential source number two had

received in the mail on February 20, 1975.

The package, when received from confiden-

tial source number two, was unopened and

;

A-125

was opened by Special Agent DAULTON in

the presence of confidential source number

two. The contents of the package were

observed to be eight each eight milli-

meter color films. Special Agent DAULTON

advised Affiant A that he had reviewed

all of these films and determined that

all depicted explicit scenes of sexual

intercourse between males and females to

include fellatio, cunnilingus and ejacu-

lation. Special Agent DAULTON advised

that subsequent to reviewing these films

he sealed each of the reels with evidence

tape and placed his initials "FRD" on

each strip of tape. Affiant A states

that he instructed Special Agent DAULTON

to enclose the aforementioned films in

the original package, rewrap the package

and transmit same to Affiant A.

21. On February 24, 1975, Affiant A

received the aforementioned package from

Special Agent FREDERICK R. DAULTON. On

February 25, 1975, this package was opened

A-126

at the office of the Federal Bureau of

Investigation, Cleveland, Ohio. After

removing the outer transmittal wrapper

the inner cardboard box contained the

eight boxes of films described in para-

graph 20. An address label affixed to

the box indicated that the box was sent

to Webster's Bookstore, 3522 Hemphill,

Fort Worth, Texas and bore a return

address listed as Cresent Plastics,

1980 East 55th Street, Cleveland, Ohio

44103. Affiant A further states that a

Pitney-Bowes postal meter sticker in the

upper right hand corner of the package

indicated that the package was deposited

into the United States mail on February

18, 1975 through Pitney-Bowes meter 179298

in the amount of $3.04. Contained within

the box were eight smaller individual

boxes each containing a reel of eight

millimeter film. The titles as listed

on these individual boxes are as follows:

A-127

Lasse Braun presents Parisiana,

"Tour Eiffel", LB 37;

Lasse Braun presents Parisiana,

"Grand Prix", LB 38;

Shocking, by Lasse Braun,

"Cake Orgy", LB 40;

Shocking, by Lasse Brau,

"Funny Priest", LB 41;

Shocking, by Lasse Braun,

"Psycho Doll", LB 42;

Pretty Girl Pictures presents,

"Hot Sucker", PG 21;

Esquire Finest Quality Film

Productions;

"Pretty Girl", #25

Affiant A reviewed the above listed films

and found that all these films depicted

obscene acts of sexual intercourse

between males and females with vivid

displays of fellatio, cunnilingus,

analingus, masturbation and ejaculation.

All of the films vividly depict actual

contact and peentration of the male penis

into the female vagina. Upon examination

of the films described in paragraph 2l,

A-128

Affiant A found numerous markings and

indications that certain of the afore-

mentioned films were imported into the

United States.

22. On February 21, 1975, Affiant B

inspected the serial numbers of the Pitney-

Bowes meters located at Postal Substation

B, 1650 East 55th Street, Cleveland, Ohio.

Affiant B states that Pitney-Bowes meter

number 179298 is physically located at

Postal Substation B, 1650 East 55th Street,

Cleveland, Ohio.

23. On February 21, 1975, Affiant A

conducted an investigation to determine

the nature of the business known as

Cresent Plastics, 1980 East 55th Street,

Cleveland, Ohio. The investigation

revealed this address to be the location

of the El Madrigal Bar. According to

published listings of the Greater Cleve-

land Area Credit Bureau no listing exists

A-129

for Cresent Plastics. Further attempts

by Affiant A to determine the existence

of Cresent Plastics in the greater Cleve-

land area met with negative results.

Based upon the past investigative experi-

ence of Affiants A and B, the utilization

of fictitious or incorrect return addresses

on packages sent by a wholesaler or

distributor of obscene material, is a

common practice utilized by said whole-

saler or distributor to prevent identifi-

cation of the location of their shipping

or distribution center.

24. On February 20, 1975, Special

Agent FREDERICK R. DAULTON, Fort Worth,

Texas advised Affiant A that according to

information developed from confidential

source number two, this source had tele-

phonically contacted SAM JOSEPH through

telephone number 216-391-3452 on February

20, 1975. Special Agent DAULTON further

advised Affiant A that according to

instructions from SAM JOSEPH to confiden-

A-130

tial sOurce number two, JOSEPH would ship

a non-specified quantity of magazines,

believed to be approximately 40 and three

eight millimeter films to confidential

source number two pending receipt of

payment by JOSEPH in the amount of $130.

On February 21, 1975, Special Agent

DAULTON advised Affiant A that he had

observed confidential source number two

obtain a cashiers check number 102995

drawn on the Seminary State Bank, 116

East Seminary Drive, Fort Worth, Texas

in the amount of $130. Special Agent

DAULTON advised that he observed the

source place this check in an envelope

addressed to Sovereign News Company, 2075

East 65th Street, Cleveland, Ohio attention

SAM JOSEPH and deposit it in a mailbox.

25. On February 28, 1975, Affiant

A was advised by Special Agent FREDERICK

R. DAULTON, Fort Worth, Texas that DAULTON

had received from confidential source

A-131

number two another package shipped from

Sovereign News Company that had been

delivered to confidential source number

two via the United States Postal Service.

Special Agent DAULTON advised that he had

received the package from confidential

source number two unopened and that

Special Agent DAULTON had opened the pack-

age in the presence of confidential source

number two. Special Agent DAULTON advised

Affiant A that the package contained three

eight millimeter films, 27 magazines and

10 paperback books. Special Agent DAULTON

further advised Affiant A that he had

reviewed each of the magazines and stated

that all of the 27 magazines depicted

various sexual activities between males

and females including acts of sexual inter-

course, cunnilingus, fellatio and mastur-

bation.

26. On March 4, 1975, Special Agent

FREDERICK R. DAULTON shipped the afore-

mentioned items directly to Affiant A at

A-132

the Federal Bureau of Investigation,

Cleveland, Ohio.

27. On March 4, 1975, Affiant A

received the package described in para-

graph number 25. The package bore an

address labeled Webster's Bookstore,

3522 Hemphill, Fort Worth, Texas, with a

return address of Prospect Sign Company,

2167 East 55th Street, Cleveland, Ohio.

In the upper right hand corner of the box

was observed Pitney-Bowes meter sticker

number 121098, post marked Cleveland,

Ohio, February 25, 1975 in the amount of

$9.56. This package contained 19 maga-

zines and three boxes of eight millimeter

films, one reel per box and three paper-

back novels. The titles of the magazines

as contained in the shipment are as

follows:

"Eroticon", #1;

"Eroticon", #2;

"Sexplorat.on", Volume 1;

"Sexploration", Volume 2;

A-133

"Sense", Volume 3, #3;

"Sense", Volume 2, #6;

"Sucking";

“Sex Act";

"Sexual Arousal - Oral Sex";

"Fucking Trios";

"Pleasure", Book 1;

"The Sex Family";

"Sexscope";

"Answers";

"Positions and Techniques";

"Sex in Marriage";

"Hot Cunts";

"Response";

"Sucking and Fucking".

The titles of the paperback novels

are as follows:

"Oral Tunnel of Love";

"Bottoms-Up-Sisters";

"Mother-Son Incest".

The titles of the eight millimeter

films are as follows:

A-134

Tropical, by Lasse Braun

"Paradise", LB 31;

Tropical, by Lasse Braun

"Limbo, LB 32;

Tropical, by Lasse Braun

"White Fantasies", LB 33.

28. On March 5, 1975, Affiant A

reviewed the above magazines and films

and found they all depicted explicit

obscene acts of sexual intercourse,

fallatio (sic), cunnilingus, analingus,

ejaculation and masturbation.

29. On February 28, 1975 Affiant B

physically inspected the serial numbers

of the Pitney-Bowes meter located at

Postal Substation B, 1650 East 55th

Street. Affiant B further states that

Pitney-Bowes meter number 121098 is

physically located at that Postal substation.

30. Investigative attempts by Affiant

A to locate the address of 2167 East 55th

Street have proven negative. Examination

of the Published Records of the Greater

Cleveland Area Credit Bureau revealed no

A-135

listing for a Prospect Sign Company.

31. On March 3, 1975, Special Agent

FREDERICK R. DAULTON, Fort Worth, Texas,

advised Affiant A that according to

information developed from confidential

source number two, this source had tele-

phonically contacted SAM JOSEPH through

telephone number (216) 391-3452 on March

3, 1975. Special Agent DAULTON further

advised that according to instructions

from SAM JOSEPH to confidential source

number two, JOSEPH would ship, via the

United Parcel Service, approximately

40 to 50 magazines to confidential source

number two. Special Agent DAULTON

fuuther advised that according to

confidential source number two SAM JOSEPH

advised this source that this would be

a C.0.D. shipment.

32. On March 4, 1975, Affiant A, was

advised by Special Agent RICHARD C. ARTIN,

an Agent of the Cleveland Office of the

Federal Bureau of Investigation that

A-136

Special Agent ARTIN had conducted a

Surveillance of a truck belonging to the

United States Parcel Service, being

further identified as truck number 40356

with current Ohio license 8H105l.

Special Agent ARTIN advised Affiant A

that this truck was observed to back into

the warehouse dock at Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio at 4:52 PM and exit the warehouse

at 4:58 PM.

33. On March 4, 1975, Affiant A

contacted WILLIAM A. SCHULTZ, United

Parcel Service, who advised that truck

number 40356, driven by AL HARRIS had

been responsible for making daily pick

ups at Sovereign News Company, 2075

East 65th Street, Cleveland. SCHULTZ

furnished Affiant A with a copy of pukup

record number 60482674 which record is of

account number 4-84-909 dated March 4,

1975. An entry on the pickup record

indicates that a package was picked up

A-137

by the driver of truck number 40356 at

Sovereign News Company, 2075 East 65th

Street on March 4, 1975. The package

was to be shipped via United Parcel

Service to Webster's Bookstore, 2500

Hemphill, Fort Worth, Texas, 76110,

C.O.D. in the amount of $143.30. Affiant

A states that immediately following

review of this pick up record SCHULTZ

provided Affiant A with a package that

SCHULTZ advised had been removed from

truck number 40356 moments before. The

package bore a label addressed to Webster's

Bookstore, 2500 Hemphill, Forth Worth,

Texas and was steel banded. Affiant A

placed the initials "GEG" and the date

March 4, 1975 in three placed on this

package and immediately returned it to

SCHULTZ.

34. On March 20, 1975, Affiant A was

contacted by Special Agent FREDERICK R.

DAULTON, Fort Worth, Texas, who advised

A-138

him that he had accompanied confidential

source number two to the United Parcel

Service Office, 520 East Lancaster

Avenue, Fort Worth, Texas on March 10,

1975. Special Agent DAULTON advised that

he observed confidential source number

two accept a package addressed to

Webster's Bookstore, 2500 Hemphill,

Fort Worth, Texas 76110. Special Agent

DAULTON advised that the source paid

$143.30 to United Parcel Service for this

package. Special Agent DAULTON further

advised Affiant A that he retrieved this

package unopened immediately from confi-

dential source number two, transported it

to the office of the Fort Worth Resident

Agency where it was opened and inventoried.

Special Agent DAULTON advised that on the

outside of the box were the initials "GEG"

March 4, 1975 and the package was steel

banded. Special Agent DAULTON advised

A-139

Affiant A that he inventoried the contents

of the box which he stated amount to 54

magazines, all of which contained black

and white and color photographs depicting

various forms of obscene sexual activity,

to include sexual intercourse, fellatio

and cunnilingus. Also contained in the

box was one copy of bill of lading,

invoice number 16704 from Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio on which the contents of the package

are listed. Special Agent DAULTON advised

Affiant A that he placed the magazines

back into the original box, rewrapped

the box and transmitted the entire

contents to Affiant A in Cleveland, Ohio.

35. On March 10, 1975, Affiant A

received the above package described in

paragraph 31 above and after removing the

outer transmittal wrapper, observed that

the outside of the original carton had

A-140

been shipped from Sovereign News Company,

2075 East 65th Street, Cleveland, Ohio

to Webster's Bookstore, 2500 Hemphill,

Fort Worth, Texas, 76110. Affiant A

states that he observed the initials "GEG"

March 4, 1975 on the outside of this box

and that this is the same box that he

observed while under the custody and

control of the United Parcel Service on

March 4, 1975. The contents of the box

were inventoried and the following titles

of magazines were found therein:

"Sucking and Fucking" two copies;

"Hot Cunts" two copies;

"Oral Love", #215 two copies;

"Image", #216 two copies;

"Eze Time", #217 two copies;

"Sex Tech" two copies;

"Sucking" two copies;

"Fucking Trios" two copies;

"Fun-Love Nympho" two copies;

A-141

"Sex Act", Book 1;

"Sex Act", Book 2;

"Fucking Couples", Volume l, #1;

"Eroticon", Book 1;

"Eroticon", Book 2;

"Nique", Book 1;

"Children of Love", Volume l, #1;

"Sexual Arousal: Oral Sex";

"Positions and Techniques";

"Sexploration", Volume 2;

"Pleasure", Book 1;

"Sucking Sisters", Volume l, #1;

"The Superstars of Porno";

"Rear Entry", Volume 1;

"Loving-Fucking", Volume 1;

"The Sex Family";

"Foreplay";

"Casebook", Volume 2, #6;

"Answers", Volume 3, #1;

"Answers", Volume 3, #2;

"Answers", Volume 3, #3;

"Answers", Volume 3, #4;

A-142

"Response", Volume l, #4;

"Response", Volume,3, #1;

"Response", Volume 3, #4;

"Sense", Volume 3, #3;

"Sense", Volume 3, #4;

"Sex in Marriage", Volume 3, #1;

"Sex in Marriage", Volume 3, #2;

"Sex in Marriage", Volume 3, #3;

"Sexscope", Volume 2, #5;

"Sexscope", Volume 2, #6;

"Sexscope", Volume 3, #1;

"Sexscope", Volume 3, #2;

"Sexscope", Volume 3, #3;

"Sexscope", Volume 3, #4;

Affiant A states that the above magazines

were reviewed by him and that they are

described as magazines containing black

and white and color photographs vividly

portraying obscene acts of sexual activity

including acts of fellatio and cunnilingus.

Numerous photographs are observed to show

actual penetration of a male penis into

A-143

the vagina and the mouth of a female.

Other scenes vividly portray oral-vaginal

contact and male ejacuation on the

stomach of an into the mouth of various

females. Affiant A further states that

contained within the box was a copy of

invoice number 16704 from the Sovereign

News Company.

36. Based upon the information set

forth in this affidavit, Affiants A and

B have reason to believe and do believe

that on the premises known as the

Sovereign News Company, located at 2075

East 65th Street, Cleveland, Ohio there

are located therein copies of obscene,

lewd, lascivious, and filthy magazines

and films which have been mentioned and

described in this affidavit. Said

obscene, lascivous, lewd and filthy maga-

zines having been imported into the United

States in violation of Title 18, United

A-144

States Code, Section 1462. In addition,

upon the premises of the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio there are located therein copies of

obscene, lascivious, lewd and filthy

magazines and films which have been and

continue to be mailed and delivered via

the United States Postal Service in

violation of Title 18, United States

Code, Section 1461. Further, there are

located upon the premises known as the

Sovereign News Company, 2075 East 65th

Street, Cleveland, Ohio copies of obscene,

lewd, lascivious, and filthy magazines and

films which have been and continue to be

transported in interstate commerce in

violation of Title 18, United States Code,

Section 1465. In addition, Affiants A

and B have reasons to believe and do

believe that records, notations, receipts,

bills of lading, billing invoices, and

A-145

Other documents evidence of the above

described illegal importation, mailing,

and interstate shipment of obscene, las-

civious, lewd, and filthy materials are

located at the Sovereign News Company,

2075 East 65th Street, Cleveland, Ohio.

37. Affiant A states that 2075 East

65th Street, Cleveland, Ohio is further

described as a two story brick building

located on the east side of East 65th

Street adjacent to and immediately north

of Carnegie Avenue, Cleveland. Above

the entrance to 2075 East 65th Street is

a white sign with black lettering stating

Sovereign News Company.

38. Affiant A states that on March 14,

1975, copies of the aforementioned

magazines and films were presented to

United States Magistrate HERBERT T. MAHER

for his evaluation. Further Affiant

sayeth not.

/s/George E. Grotz

GEORGE E. GROTZ

Special Agent

Federal Bureau of

A-146 Investigation

/s/Ronald E. Barakowski

RONALD E. BARAKOWSKI

Postal Inspector

United States Postal

Service

Subjects are sworn to me this 18th

day of March, 1975.

/s/ Herbert T. Maher

HERBERT T. MAHER

United States Magistrate

A-147

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES Docket No.

OF AMERICA

Case No.

vs.

Sovereign News Company

2075 East 65th Street

Cleveland, Ohio

SEARCH WARRANT

To any Agent of the Federal Bureau of

Investigationor any Postal Inspector

Affidavit(s) having been made before

me by Special Agent GEORGE E. GROTZ

that he has reason to believe that on the

premises known as Sovereign News Company,

2075 East 65th Street, Cleveland, Ohio

in the Northern District of Ohio

there isnow being concealed certain pro-

perty, namely obscene, lewd, lascivious

and filthy magazines and motion picture

films, included, but not limited to, the

itmes listed in Exhibit A attached to

this search warrant, and records, receipts,

A-148

notations, bills of lading, journals,

ledgers, billing invoices, inventories,

and other documents reflecting the impor-

tation receipt and shipment of the afore-

mentioned obscene material in interstate

commerce or by the U.S. Postal Service.

Seizure of the magazines and motion

picture films and other magazines and

movies of the same kind and nature is to

be limited to three (3) evidentiary copies

to also include documents reflecting

the corporate structure of Sovereign

News Company and any of its affiliate

companies.

and as I am satisfied that there is pro-

bable cause to believe that the property

so described is being concealed on the

person or premises above described and

that grounds for application for issuance

of the search warrant exist as stated in

the supporting affidavit(s).

A-149

You are hereby commanded to search

within a period of ten days (not to

exceed 10 days) the person or place named

for the property specified, serving this

warrant and making the search in the

daytime (6:00 a.m. to 10:00 p.m. and if

the property be found there to seize it,

leaving a copy of this warrant and receipt

for the property taken, and prepare a

written inventory of the proverty seized

and promptly return this warrant and bring

the property before /s/Herbert T. Maher

Federal judge or magistrate

as required by law.

Dated this 25th day of March, 1975

/s/Herbert T. Maher

Judge (Federal or State

Court of Record) or

Federal Magistrate

A-150

EXHIBIT A

The titles of the eight millimeter movies

observed in plain view are as follows:

"Dominate Trio,

"Dominate Trio,

"Bizarre Bondage" BI-102

"Bound to Please," BI-103

Part A"

Part B"

BI-101A

BI-101B

"Drenched and Spanked," BI-104

"Trained and Transformed"

"The Honeymoon"

"Naughty Nurses"

"Make Me Please"

"Lovers"

"Suckables"

"Sweet Meat"

"L. Love Lace"

"Prison Playmates"

Super

Super

Super

Super

Super

Super

Oz films presents

Oz films presents

Oz films presents

Oz films presents

Pretty Girl films

Core

Core

Core

Core

Core

Core

film

film

film

film

film

film

number

number

number

number

number

number

Man and the Boat

Pretty Girl films presents Horse Play

Pretty Girl films number 24,

Pool Party

Pretty Girl presents number 22,

the Car Caper

1,

3

4

5

6

7

Erotica Unlimited, eight

film from Scandinavia,

Erotica Unlimited, eight

film from Scandinavia,

Erotica Unlimited, eight

film from Scandinavia,

A-151

BI-105

special edition

Motorcycle Mama's

Capture Flesh

Big Black Jack

Lesbian Nurses

presents the

millimeter

number 1

millimeter

number 2

millimeter

number 4

Erotica Unlimited, eight millimeter

film from Scandinavia, Number 7

Erotica Unlimited, eight millimeter

film from Scandinavia number 8

Erotica Unlimited, eight millimeter

film from Scandinavia, Number 9

Erotica Unlimited, eight millimeter

film from Scandinavia number 12

Erotica Unlimited, eight millimeter

film from Scandinavia, number 13

Erotica Unlimited, eight millimeter

film from Scandinavia number 14

Erotica Unlimited, eight millimeter

film from Scandinavia, number 15

Erotica Unlimited, eight millimeter

film from Scandinavia number 16

Danska, Sex in Danska Color

Flesh Films number 2, Sex for Dessert

Flesh Films, Her Majesty

Flesh Films, number 4, Brother and Sis

Flesh Films number 3, Robin Breast

Pretty Girl Films, French Maid number 27

Pretty Girl number 28, Cher and

Cher Alike

Lasse Braun Depraved Series,

The Maniac LB 36

Lasse Braun Depraved Series,

The Debs LB 35

Lasse Braun, The Countess LB 34

Pretty Girl Films number 29,

Pretty Girl of the Year

Pretty Girl Films number 30,

Strip Poker

Pretty Girl Films Number 31,

Ice Cream Sandwich

Porno Mondo Number 1

Bizarre Film, Rape of the Hitchhiker,

Part I

Bizarre Film, Rape of the Hitchhiker,

Part II

Bizarre Film, Mother and Daughter

Rape, Part I

Bizarre Film, Mother and Daughter

Rape, Part II

A-152

Bizarre Films, Rape of the Waitress,

Part I

Bizarre Films, Rape of the Waitress,

Part II

Peep Films, number

Peep Films, number

Peep Films, number

Peep Films, number

Peep Films, number

Scandinavia Films, Fill All Holes

Scandinavia Films, Cockpit

Scandinavia Films, Double Header

Scandinavia Films, Fuck Me Tender

Scandinavia Films, There She Blows

U&wWNF-

The boxes of the following eight

millimeter films were untitled; however,

they are identified by the Stock Number

located on the exterior of the boxes.

CC-87

CC-86

CC-88

CC-62

cc-55

CC-64

CC-71

CC-72

CC-70

CC-76

The titles of the magazines observed

in plain view are as follows:

"Sexpo", No. 211

"Cherry," No. 212

"Pussycat," No. 213

"Stud Service," Volume 1

"Con Amore"

"Trick n Treat"

A-153

"Three Way Fuck"

"Ballin"

"Stiff," Volume 1, No. 1

"Finger Lickin Good"

"Young Lust"

"Desire"

"Succotash," Volume 1, No. 1

A-154

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES Docket No.

OF AMERICA

Case No.

vs.

ArFIDAVIT FOR

SEARCH WARRANT

Sovereign News Company

2075 East 65th Street

Cleveland, Ohio

BEFORE HERBERT T. MAHER Cleveland, Ohio

The undersigned being duly sworn

deposes and says:

That he has reason to believe that

on the premises known as Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio

in the Northern District of Ohio

there is now being concealed certain

property, namely obscene, lewd, lascivious,

and filthy magazines and motion picture

films, specifically listed, but not

A-155

limited to items further described in

Exhibit A attached to this affidavit, and

records notations, bills of lading, punch

tapes, journals, computer tapes, ledgers,

letters, billing invoices, inventories,

and other documents reflecting the impor-

tation, receipt and/or shipment of the

aforementioned obscene material in inter-

state commerce or by the U.S. Postal

Service. Seizure of the specifically

listed obscene, lewd, lascivous and

filthy magazines and motion picture films

is to be limited to three (3) evidentiary

copies, which are evidence of violation

of Title 18, United States Code, Sections

1461, 1462, and 1465.

And that the facts tending to estab-

lish the foregoing grounds for issuance

of a Search Warrant are as follows:

See attached affidavit: Exhibit B

/s/Goerge E. Grotz

GEORGE E. GROTZ Signature

of Affiant

Special Agent, FBI Official

Title, if any

A-156

Sworn to before me, and subscribed

in my presence, March 25, 1975.

/s/Herbert T. Maher

HERBERT T. MAHER

Judge or Federal

Magistrate

A-157

EXHIBIT A

The titles of the eight millimeter movies

observed in plain view are as follows:

"Dominate Trio, Part A" BI-lOlA

"Dominate Trio, Part B" BI-101B

"Bizarre Bondage" BI-102

"Bound to Please," BI-103

"Drenched and Spanked," BI-104

Trained and Transformed"

"The Honeymoon"

"Naughty Nurses"

"Make Me Please"

"Lovers"

"Suckables"

"Sweet Meat"

"L. Love Lace"

"Prison Playmates"

Super Core

Super Core

Super Core

Super Core

Super Core

Super Core

film

film

film

film

film

film

number

number

number

number

number

number

1,

3

4

~

6

7

BI-105

special edition

Oz films presents Motorcycle Mama's

Oz films presents Capture Flesh

Oz films presents Big Black Jack

Oz films presents Lesbian Nurses

Pretty Girl films presents the

Man and the Boat

Pretty Girl films presents Horse Play

Pretty Girl films number 24, Pool Party

Pretty Girl presents number 22,

the Car Caper

Erotica Unlimited, eight

film from Scandinavia,

Erotica Unlimited, eight

film from Scandinavia,

Erotica Unlimited, eight

film from Scandinavia,

A-158

millimeter

number 1

millimeter

number 2

millimeter

number 4

Erotica Unlimited, eight millimeter

film from Scandinavia, Number 7

Erotica Unlimited, eight millimeter

film from Scandinavia number 8

Erotica Unlimited, eight millimeter

film from Scandinavia, Number 9

Erotica Unlimited, eight millimeter

film from Scandinavia number 12

Erotica Unlimited, eight millimeter

film from Scandinavia, number 13

Erotica Unlimited, eight millimeter

film from Scandinavia number 14

Erotica Unlimited, eight millimeter

film from Scandinavia, number 15

Erotica Unlimited, eight millimeter

film from Scandinavia, number 16

Danska, Sex in Danska Color

Flesh Films number 2, Sex for Dessert

Flesh Films, Her Majesty

Flesh Films, number 4, Brother and Sis

Flesh Films number 3, Robin Breast

Pretty Girl Films, French Maid number 27

Pretty Girl number 28, Cher and

Cher Alike

Lasse Braun Depraved Series,

The Maniac LB 36

Lasse Braun Depraved Series,

The Debs LB 35

Lasse Braun, The Countess LB 34

Pretty Girl Films number 29,

Pretty Girl of the Year

Pretty Girl Films number 30, Strip Poker

Pretty Girl Films Number 31,

Ice Cream Sandwich

Porno Mondo Number 1

Bizarre Film, Rape of the Hitchhiker,

Part I

Bizarre Film, Rape of the Hitchhiker,

Part II

Bizarre Film, Mother and Daughter Rape,

Part I

Bizarre Film, Mother and Daughter Rabe,

Part II

A-159

Bizarre Films, Rape of the Waitress,

Part I

Bizarre Films, Rape of the Waitress,

Part II

Peep Films, number

Peep Films, number

Peep Films, number

Peep Films, number

Peep Films, number

Scandinavia Films, Fill All Holes

Scandinavia Films, Cockpit

Scandinavia Films, Double Header

Scandinavia Films, Fuck Me Tender

Scandinavia Films, There She Blows

ON &wWwNr

The boxes of the following eight

millimeter films were untitled; they are

identified by the Stock Number located

on the exterior of the boxes.

in

CC-87

CC-86

CC-88

CC-62

CCc-55

CC-64

CC-71

CC-72

CC-70

CC-76

The titles of the magazines observed

plain view are as follows:

"Sexpo", No. 211

"Cherry," No. 212

"Pussycat," No. 213

"Stud Service," Volume 1

"Con Amore"

"Trick n Treat"

"Three Way Fuck"

"Ballin"

A-160

"Stiff," Volume 1, No. 1

"Finger Lickin Good"

"Young Lust"

"Desire"

"Succotash," Volume 1, No. l

A-161

AFPLODOAYV iT

1. 1, GEORGE E. GROTZ, am emploved

as a Special Agent of the Federal Bureau

of Investigation and have continually

held that position for the past three

and a half years. The affiant has con-

ducted investigations of the interstate

transportation of obscene matter in the

Northern District of Ohio since December,

1973, and has supervised an investigation

involving the interstate transportation

of obscene matter by the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio, since December, 1973. In accordance

with this assignment, I have received

the reports of investigations conducted

by other Special Agents of the Federal

Bureau of Investigation and have had this

information available for my utilization

in this investigation. The affiant has

read this affidavit and is satisfied the

information contained herein is accurate.

A-162

EXHIBIT B

2. The affiant has reason to believe,

and does believe, that the Sovereign News

Company, 2075 East 65th Street, Cleveland,

Ohio, is now committing and will continue

to commit offenses against the United States

in that the Sovereign News Company, 2075

East 65th Street, Cleveland, Ohio, has

imported or has caused to be imported into

the United States, obscene, lewd, lasci-

vious and filthy material, in the form of

magazines and motion picture films, in

violation of Title 18, United States Code,

Section 1462. In addition, the Sovereign

News Company, 2075 East 65th Street,

Cleveland, Ohio, has, and will continue to

knowingly use, the United States Postal

Service for the mailing, carriage and

delivery of obscene, lewd, lascivious

and filthy material in violation of Title

18, United States Code, Section 1461.

Further, the affiant has reason to believe

and does believe, that the Sovereign News

A-163

Company, 2075 East 65th Street, Cleveland,

Ohio, has and will continue to knowingly

transport in interstate commerce via the

United Parcel Service, an interstate

express company, or other common carrier,

obscene, lewd, lascivious and filthy

magazines and motion picture films for the

purpose of sale and distribution, in

violation of Title 18, United States Code,

Section 1465.

3. On March 19, 1975, the affiant

and other agents of the Federal Bureau

of Investigation executed a Federal search

warrant on the premises of the Sovereign

News Company, 2075 East 65th Street,

Cleveland, Ohio. Pursuant to that search

warrant, numerous evidentiary copies of

magazines and eight millimeter motion

pictures which vividly portrayed obscene

sexual acts were seized. The obscene

sexual acts depicted but were not limited

to, acts of cunnilingus, fellatio, ejacu-

lation, masterbation and penetration of

A-164

the male penis into the vagina and mouth

of a female.

In addition, numerous receipts, billing

invoices, notations and other records

reflecting the past and ongoing interstate

transportation and/or importation of

obscene material were also seized pursuant

to the search warrant.

4. During the course of the execution

of the search warrant on the premises

of the Sovereign News Company on March 19,

1975, numerous other obscene magazines were

observed in plain view, the covers of

these magazines vividly depicted obscene

sexual activites between males and females,

males and males, females and females,

including acts of fellatio, cunnillingus

(sic), and ejaculation, of the same kind

which were seized pursuant to the afore-

mentioned search warrant. In addition,

numerous boxes of eight millimeter films

were observed in plain view, the covers

A-165

of which also depicted obscene sexual

activities between males and females,

males and males, females and females, which

included obscene sexual acts of fellatio,

cunnillingus (sic) and ejaculation and

masterbation.

The titles of the obscene magazines

observed in plain view are as follows:

"Sexpo", No. 211

"Cherry," No. 212

"Pussycat," No. 213

"Stud Service", Volume 1

"Con Amore"

"Trick' n Treat"

"Three Way Fuck"

"Ballin"

"Stiff," Volume l, No. l

"Finger Lickin Good"

"Young Lust"

"Desire"

"Succotash," Volume l, No. l

A-166

The titles of the eight millimeter

movies observed in plain view are as

follows:

"Dominate Trio, Part A" BI-l0l1A

"Dominate Trio, Part B" BI-101B

"Bizarre Bondage" BI-102

"Bound to Please" BI-103

"Drenched and Spanked" BI-104

"Trained and Transformed" BI-105

“The Honeymoon"

"Naughty Nurses"

"Make Me Please"

"Lovers"

"Suckables"

"Sweet Meat"

"L. Love Lace"

"Prison Playmates"

Super Core film number 1, special edition

Super Core film number 3

Super Core Film number 4

Super Core Film number 5

Super Core Film number 6

Super Core Film number 7

Oz films presents Motorcycle Mama's

Oz films presents Capture Flesh

Oz films presents Big Black Jack

Oz films presents Lesbian Nurses

Pretty Girl films presents the

Man and the Boat

Pretty Girl films presents Horse Play

Pretty Girl films number 24, Pool Party

Pretty Girl presnts number 22,

the Car Caper

Erotica Unlimited, eight millimeter

film from Scandinavia number 1

Erotica Unlimited, eight millimeter

film from Scandinavia number 2

Erotica Unlimited, eight millimeter

film from Scandinavia number 4

Erotica Unlimited, eight millimeter

film from Scandinavia number 7

A-167

Erotica Unlimited, eight millimeter

film from Scandinavia number 8

Erotica Unlimited, eight millimeter

film from Scandinavia number 9

Erotica Unlimited, eight millimeter

film from Scandinavia number 12

Erotica Unlimited, eight millimeter

film from Scandinavia number 13

Erotica Unlimited, eight millimeter

film from Scandinavia number 14

Erotica Unlimited, eight millimeter

film from Scandinavia number 15

Erotica Unlimited, eight millimeter

film from Scandinavia number 16

Danska, Sex in Danska Color

Flesh Films number 2, Sex for Dessert

Flesh Films, Her Majesty

Flesh Films, number 4, Brother and Sis

Flesh Films number 3, Robin Breast

Pretty Girl Films, French Maid number 27

Pretty Girl number 28, Cher and Cher

Alike

Lasse Braun Depraved Series,

The Maniac LB 36

Lasse Braun Depraved Series,

The Debs LB 35

Lasse Braun, The Countess LB 34

Pretty Girl Films number 29,

Pretty Girl of the Year

Pretty Girl Films Number 30,

Strip Poker

Pretty Girl Films Number 31,

Ice Cream Sandwich

Porno Mondo number 1

Bizarre Film, Rape of the Hitchhiker,

Part I

Bizarre Film, Rape of the Hitchhiker,

Part II

Bizarre Film, Mother and Daughter

Rape, Part I

Bizarre Film, Mother and Daughter

Rape, Part II

A-168

Bizarre Films, Rape of the Waitress,

Part I

Bizarre Films, Rpae of the Waitress,

Part II

Peep Films,

Peep Films,

Peep Films,

Peep Films,

Peep Films,

Scandinavia

Scandinavia

Scandinavia

Scandinavia

Scandinavia

number

number

number

number

number

Films,

Films,

Films,

Films,

Films,

WU & WNP

Fill all Holes

Cockpit

Double Header

Fuck Me Tender

There She Blows

The boxes of the following eight

millimeter films were untitled; however,

they are identified by the Stock Number

located on the exterior of the boxes,

and affiant has reason to believe they

depict obscene acts of fellatio, cunnilin-

gus, and ejaculation.

CC-87

CC-86

CC-88

CC-62

CC-55

CC-64

CC-741

CC-72

CC-70

CC-76

A-169

6. During the course of the execution

of the Federal search warrant of March 19,

1975, on Sovereign News Company, 2075 East

65th Street, Cleveland, Ohio, records,

receipts (as noted in Paragraph three

(3)), bills of lading, billing invoices,

inventories, notations and other records

reflecting the ongoing interstate shipments

of obscene material, were observed by the

affiant and other Agents of the Federal

Bureau of Investigation. These records

are set out as follows:

A. A typewritten list entitled as

follows:

Agency Addresses and Telephone Numbers

Capitol News Co.

3400 North Kedzie Ave. AL BLOOM

Chicago, Illinois

(312) 583-5500

Castle News Co.

4551 North 125th Street PAULA BUBRICK

Butler, Wisconsin

(414) 781-2350

Crown News

1171 Chestnut Street STU WEISS

Camden, New Jersey 08103

(609) 365-3011

A-170

Imperial News Co.

35 Main Street

Depew, New York FRANK POTWORA

(716) 684-6076

Majestic News Co.

922 West Fourth Avenue

Pittsburgh, Pa. 15233 GREG KOCAN

(412) 231-5040

231-6660

New England News Co,

215 A Street

Boston, Mass 02210 NEIL TRAYNOR

617-269-5266 (not on WATS line)

Noble News Co,

7803 Pulaski Highway HERMAN WEISS

Baltimore, Maryland 21237

(301) 326-2100

Royal News Co.

30024 Beverly Road RICHARD LITTLE

Romulus, Michigan

(313) 326-2100

Sundial News Co.

2650 West 2nd Avenue JOE COULTER

Denver, Colorado 80219

(303) 934-5426

934-5427 (not on WATS line)

Discount News Co.

1975 East 65th Street BERNIE WYMAN

Cleveland, Ohio

881-5877

B. Minutes of a meeting entitled

"Decentralization of Headquarters Function",

To Capital News Agency Company, dated

A-171

July 10, 1974, which discusses the

reorganization of Capital News Agency.

C. Crown News check book, address 1171

Chestnut Street, Camden, New Jersey.

D. Invoices and deposit slips from

New England News, 215 A Street, Boston,

Massachusetts 02210 drawn on the First

National Bank of Boston.

E. A merchandise return form number

00714 from Sovereign News Company, 2075

East 65th Street, Cleveland, Ohio,

returned to All American Distributing,

8431 Melrose Avenue, Los Angeles, Cali-

fornia, indicating that they had mailed

905 magazine strips at a price of $1.25;

50 magazines strips at a cover price of

$1.50 and 123 magazine strips with a cover

price of $2.50.

F. Twenty-four hour bank receipts in

the name of Imperial News Company, 35 Main

Street, Depew, New York, account number

14043 listing deposits in this account

A-172

and the accounts for the following dates:

March 5, 1975 $2,656.06

March 6, 1975 $1,629.82

March 7, 1975 $2,213.61

March 8, 1975 $6,615.26

March 10, 1975 $1,851.41

March ll, 1975 $ 868.08

March 12, 1975 S Beeere

G. A letter dated March 4, 1975,

addressed to RON BRAVERMAN, The Lasse

Braun Shop, Reguliersbreestraat 7,

Amsterdam, Netherlands, in which the

author of the letter mentions obtaining

the International Gay Guide for distribution

in this country. In the lower half of the

letter is a note addressed "Dear RUBE,"

in which the American rights for the

"Gay Guide" are mentioned.

H. A letter dated February 17, 1975,

addressed to REUBEN STURMAN, Sovereign

News Company, 2075 East 65th Street,

Cleveland, Ohio, on stationery with the

letterhead of Cinetex BV, Lasse Braun Sex

Shop/Cinemas RON BRAVERMAN, Director, with

the address, The Lasse Braun Shop,

A-173

Reguliersbreestraat 7, Amsterdam, Holland.

The letter mentions that the author of the

letter who is signed RON has been working

on contracts to cover an additional

expensive film and the the individual

responsible for the contracts is requiring

an additional $20,000.

I. A 152 page shipping account ledger

on which approximately 100 pages are

completely filled out. Contained within

these pages are approximately 4,000 entries

indicating shipments of items and appro-

priate invoice numbers to various news-

stands, bookstores, book exchanges,

literary shops, cigar stores, and other

magazine and film outlets throughout the

United States, Canada, and other foreign

countries. The methods of shipment of

these items includes entries which are

described as "truck", "UPS," "Greyhound,"

"Trailways", "mail" and other modes of

transportation,

A-174

J. The items mentioned in letters

"F," "G," and "H" were seized pursuant to

the Federal search warrant mentioned in

Paragraph 3.

K. An invoice, number 4228, dated

February 19, 1975, from Buy-Rite Magazine

Sales, 4242 Lankershim Boulevard, North

Hollywood, California 91602, to Sovereign

News Company, 2075 East 65th Street, Cleve-

land, Ohio 44103 indicating that a

shipment of the following magazines had

been shipped from Buy-Rite Magazine Sales

to Sovereign News Company on February 18,

1975, via Yellow Freight Systems.

Quantity Description Rate Amount

500 Bachelor Journal

1/3

500 Bad and Bold, 1/3

500 Erotic, 1/3

500 Naked Mrs., 2/2

500 Diane, 1/10

500 Hombre, 2-11

A-175

Quantity Description Rate Amount

500 Slick Chick, 1/7

500 Swingers, 3/5

500 Wives Alone, 1/12

Total of 4.500 magazines 30 $2,250.00

Attached to this invoice was a Yellow

Freight System bill of lading indicating

that the enclosed 4,500 magazines had

been shipped in 46 cartons. This was

Yellow Freight System Way Bill 111-182318

and also attached to this was a Sovereign

News Company report number 14960 which

indicated receipt of the 46 cartons.

A-176

7. On March 17, 1975, the affiant was

advised by Special Agent RICHARD K. PHINNEY,

Los Angeles, California, Division of the

Federal Bureau of Investigation that he

had developed information regarding a

shipment of magazines from Southeast

Products, 11233 San Fernando, San Fernando,

California, to Sovereign News Company,

2075 East 65th Street, Cleveland, Ohio.

Special Agent PHINNEY provided the affiant

with a copy of a Yellow Freight System

bill of lading number 111-178373 which

indicated that 125 cartons of magazines

had been shipped from Southeast Products,

11233 San Fernando, San Fernando, Cali-

fornia, to Sovereign News Company, 2075

East 65th Street, Cleveland, Ohio.

According to Special Agent PHINNEY, con-

tained within the cartons were copies of

a magazine entitled, "The Sex Family.”

Special Agent PHINNEY advised that the

magazine bore a $7.50 cover price and

A-177

consisted of black and white and color

photographs vividly portraying obscene

sexual acts to include fellatio, cunni-

lingus, and ejaculation, and anal inter-

course.

8. On March 19, 1975, Special Agent

THOMAS W. W. WARD of the Cleveland

Division of the Federal Bureau of Investi-

gation advised that affiant during the

course of the execution of the Federal

search warrant aforementioned, that he

had seized three (3) copies of a magazine

entited, "The Sex Family." Special Agent

WARD advised the affiant that he had

retrieved the copies of "The Sex Family"

from a carton on which the address label

was affixed. Special Agent WARD advised

the affiant that he seized this address

label which bore the information indicating

that the carton had been shipped from

Southeast Productions, 11233 San Fernando

Road to Sovereign News Company, 2075 East

A-178

65th Street, Cleveland, Ohio 44103. The

affiant reviewed copy of this magazine

subsequent to its seizure by Special Agent

THOMAS W. W. WARD and found that contained

within are numerous black and white and

color photographs vividly portraying

obscene sexual activities between males

and females to include acts of fellatio,

cunnilingus, and ejaculation and anal

intercourse.

9. Based upon the information set

forth in this affidavit, the affiant has

reason to believe and does believe that on

the premises known as the Sovereign News

Company, located at 2075 East 65th Street,

Cleveland, Ohio, there are located therein

additional copies of various obscene,

lewd, lascivious, and filthy magazines

and films. Said obscene, lascivious, lewd

and filthy magazines and films having been

imported into the United States in viola-

tion of Title 18, United States Code,

Section 1462. In addition, upon the

A-179

premises of the Soverign News Company,

2075 East 65th Street, Cleveland, Ohio,

there are located therein additional

copies of various obscene, lascivious,

lewd and filthy magazines and films which

have been and continue to be mailed and

delivered via the United States postal

Service in violation of Title 18, United

States Code, Section 1461. Further, there

are located upon the premises known as the

Sovereign News Company, 2075 East 65th

Street, Cleveland, Ohio, additional copies

of various obscene, lewd, lascivious,

and filthy magazines and films which have

been and continue to be transported in

interstate commerce in violation of Title

18, United States Code, Section 1465. In

addition, the affiant has reason to believe

and does believe, that additional records,

notations, receipts, bills of lading,

billing invoices, and other documents

evidence of the above described illegal

A-180

importation, mailing, and interstate

shipment of obscene, lascivious, lewd,

and filthy materials are located at the

Sovereign News Company, 2075 East 65th

Street, Cleveland, Ohio.

10. Affiant states that 2075 East

65th Street, Cleveland, Ohio, is further

described as a two-story brick building

located on the east side of East 65th Street

adjacent to and immediately north of

Carnegie Avenue, Cleveland, Ohio. Above

the entrance to East 65th Street, is a

white sign with black lettering stating

Sovereign News Company.

/s/George E. Grotz

GEORGE E. GROTZ

Special Agent

Federal Bureau of

Investigation

Subject is sworn to me this 25th of

March, 1975.

/s/Herbert T. Maher

HERBERT T. MAHER

United States Magistrate

A-181

UNITED STATES CONSTITUTION

FTRST AMENDMENT

Freedom of Religion, Speech And Press;

Peaceful Assemblage; Petition of Grievances

Congress shall make no law respecting

an establishment of religion, or prohibit-

ing the free exercise thereof; or

abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble, and to petition

the Government for a redress of grievances.

A-182

UNITED STATES CONSTITUTION

FOURTH AMENDMENT

Searches and Seizures.

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things

to be seized.

A-183