Memorandum — Melvin Friedman v. United States

CO OBES TO we GIO

In the Supreme Court of the United States

OcToBER TERM, 1974

No. 74-1130

MELVIN FRIEDMAN, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN

OPPOSITION

Petitioners contend (1) that the showing of intent suf-

ficient to establish a substantive violation of the federal

obscenity statute is insufficient in a prosecution for con-

spiracy to violate that statute, and (2) that because sev-

eral of the overt acts charged were allegedly protected

First Amendment activities and the convictions required

proof of only one overt act, the convictions violate the

First Amendment.

Following a jury trial in the United States District Court

for the Eastern District of Arkansas, petitioners Friedman,

Mitchum, Fishman, and Boyd were convicted of having

knowingly conspired to transport in the United States mail

(1)

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obscene literature (18 U.S.C. 1465 and 2), in violation of

18 U.S.C. 371. Petitioners were sentenced as follows:

Friedman - 42 months’ imprisonment (30 days incarcera-

tion with the balance on probation) and a $5,000 fine;

Fishman - 36 months’ imprisonment (15 days incarcera-

tion with the balance on probation) and a $2,500 fine;

Mitchum - 36 months’ imprisonment (15 days incarcera-

tion with the balance on probation) and a $1,500 fine;

Boyd - 30 months’ imprisonment (15 days incarceration

with the balance on probation) and a $1,500 fine. Peti-

tioner Sooner State News Agency was convicted on two

counts of having violated 18 U.S.C. 1465 and 2, and

was fined a total of $5,000. The court of appeals

affirmed the convictions (Pet. App. A).

The evidence at trial related to several sexually oriented

book distributing corporations and retail bookstores, in-

cluding Sooner State News Agency, Inc. of Tulsa, Okla-

homa, All Star News Agency, Inc. of St. Louis, Missouri,

and Paris Bookstall, Inc., doing business as Books Limited

Numbers | and 2 of Little Rock, Arkansas. The corpora-

tions had overlapping directorates and officers and were

essentially one business under the direction of Peachtree

National Distributors, Inc. of Atlanta, Georgia, whose

warehouse contained large numbers of sexually oriented

books, magazines, newspapers, films, novelty items, and

movie machines, with “hard core” pornography stored in

a special locked area (Tr. 146, 192, 226-227). The bank

statements of several of the subsidiary corporations were

mailed directly to the Atlanta headquarters office (Tr. 62,

63, 66, 76, 77, 80, 85, 86, 89) and several employees of the

subsidiaries were paid from a consolidated payroll account

‘in Atlanta (Tr. 70-74).

From February, 1971 to February, 1973, petitioners

opened or purchased five bookstores in Arkansas (Tr. 129.

131. 162, 189, 195, 198). All of the bookstores dealt ex-

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clusively with sexually-oriented books, magazines, movies,

and novelties (Tr. 129, 134, 189, 234), which were supplied

exclusively from Peachtree National Distributors, All

Star News Agency, and Sooner State News Agency (Tr.

130, 191, 196).

Books Limited Numbers | and 2 were retail bookstores

originally stocked exclusively with sexually oriented ma-

terial obtained through petitioner Fishman and shipped

from All Star News Agency, the St. Louis subsidiary (Tr.

128, 130).

On July 6 and 12, 1972, Sooner State News Agency

mailed obscene printed materials from Tulsa, Oklahoma, to

Books Limited Number 2 in Little Rock, Arkansas (Tr.

293-295, 389-392). On February 15, 1973, Peachtree Dis-

count Distributors, also a subsidiary of Peachtree National

Distributors, mailed obscene material from Atlanta, Geor-

gia, to Books Limited Number | in Little Rock (Tr. 399-

401). The material thus shipped, which was introduced in —

evidence, contained photographs of men and women —

participating in numerous sex acts, including sexual inter-

course with penetration, anal intercourse, fellatio, cunnil-

ingus, and masturbation. These shipments, alleged as overt

acts in the conspiracy charged against the individual peti-

tioners, were part of a plan described by petitioners Fried-

man and Fishman first to introduce “soft” and then “hard

core” pornography into the several retail bookstores con-

trolled from the Atlanta, Georgia, headquarters (Tr. 237-

239).

Petitioner Friedman was president of Peachtree National

Distributors (Tr. 59), director and secretary-treasurer of

All Star News Agency (Tr. 75-76), and secretary of Sooner

State News Agency (Tr. 79, $1). Petitioner Mitchum was

president of All Star News Agency (Tr. 74-75), Sooner

State News Agency (Tr. 79), and Paris Bookstall, Inc. (Tr.

85, 98). Petitioner Boyd was manager of the two Books

De We PES Ar ot 4 PY

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Limited bookstores in Little Rock (Tr. 85, 91, 98-99, 283-

284, 286), hiring employees and visiting the stores almost

daily (Tr. 283, 285. 286, 29]). Petitioner Fishman was an

employee of Peachtree National Distributors and helped

to establish bookstores in Hot Springs and the two Books

Limited stores:in Little Rock (Tr. 127-129, 133, 168, 185-

186, 189, 193).

1. Petitioners contend that the intent requirement in a

prosecution for conspiracy to violate 18 U.S.C. 1465 neces-

sitates proof of their knowledge of the legally-obscene

status of the material. Petitioners concede, as they must,

that the government’s proof of intent is sufficient to sustain

a conviction for a substantive violation of federal obscenity

statutes if it shows that petitioners had knowledge of the

nature and content of the materials (Pet. 13). //amling v.

United States, 418 U.S. 87, 119-124.' Petitioners neverthe-

less contend that proof of their knowledge that the ma-

terials are legally obscene is required in a conspiracy

prosecution.” Petitioners proffer no sound basis for their

distinction between conspiracy and substantive obscenity

‘Petitioners argue that a conspiracy prosecution requires proof of

specific intent whereas a prosecution for a substantive violation of an

obscenity statute does not (Pet. 12). Contrary to this assertion, however,

‘ proof of specific intent is required in either case. As this Court held in

Hamiling, specific intent is established by proof of knowledge of the

character of the materials alleged to be obscene. 418 U.S. at 123.

*Indeed, although the Court in Humiling expressly addressed the

question whether proof that the defendant knew the materials were

_ obscene was required in a prosecution under 18 U.S.C. 1461, the peti-

tioners therein were convicted of conspiracy and substantive offenses.

The instructions challenged in Humling, in particular the instruction

that the petitioners’ “belief as to the obscenity or non-obscenity of

the material [was] irrelevant” (41% U.S. at 120). were generally appli-

cable. Thus. while the Court in //amiling was not confronted with the

issue as petitioners here have framed it, the decision necessarily re-

lated to the challenge to instructions applicable to both conspiracy and

substantive offenses.

* Vie.

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offenses. See, United States v. Maurv, 501 F.2d 45, 51

(C.A. 2); United States v. Bufalinuv, 285 F.2d 408, 416

(C_A. 2) Cf Lnited Siates vy. Feola, No. 73-1123, decided

March 19, 1975, slip op. at 14-24.) Thus the court of ap-

peals correctly held that sufficient evidence was intro-

duced to support the jury’s conclusion that the petitioners

were aware of the nature and contents of the material

which they agreed to transport by mail (Pet. App. A 10)

and therefore acted with the necessary criminal intent.

2. Petitioners also argue that the prosecution was con-

stitutionally impermissible because several of the alleged

overt acts, such as incorporating book distribution firms,

were presumptively activities protected by the First

Amendment, and only one overt act was required for

conviction. Petitioners argue that an overt act involving

protected First Amendment activity cannot support a con-

viction, because permitting such conviction would chill

the exercise of First Amendment freedoms.

In a prosecution for conspiracy, however, the overt act

itself need not be criminal, since its function is “simply

to manifest ‘that the conspiracy is at work.’” Yates v.

United States, 354 U.S. 298, 334 (citing Carlson v. United

States, 187 F.2d 366, 370 (C.A. 10) ). See, also, Braverman

v. United States, 317 U.S. 49, 53. Petitioners concede as

much, but contend that a conspiracy prosecution relying

upon such overt acts represents an unconstitutional appli-

cation of the statute. This contention is, as the court

of appeals recognized (Pet. App. A 8), but another way of

arguing that obscenity is protected by the First Amendment.

‘The question “whether it is fair to punish parties to an agreement to

engage intentionally in apparently innocent conduct where the unin-

tended result of engaging in that conduct is the violation of a criminal

statute” (id. at 19) was not presented in /vvlu and is not presented

here. The character and nature of the materials here. found to be ob-

scene. refutes the claim of “apparently innocent conduct.” the

“unintended result” of which is violation of a criminal statute

Osi as OO aie

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Prattancci-n

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Miller v. California, 413 U.S. 15, 23; Roth v. United

States, 354 U.S. 476, 485.

Petitioners were prosecuted, not for having engaged in

activities protected by the First Amendment, but for having

agreed to use the mails to transport obscene materials, a

non-protected activity. As part of this conspiracy, they en-

gaged in certain activities which, standing alone, were not

criminal. This does not foreclose the proof of such acti-

vities “simply to manifest ‘that the conspiracy is at work’ ”.

Yates v. United States, supra, 354 U.S. at 334.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoBerT H. Bork,

Solicitor General.

May 1975.

[995-1 97 S405