# Appendix — Sovereign News Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0777%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 464 U.S. 814 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0777%3A2. Public record. Not legal advice.