Opposition Brief — Michael Kutler v. United States

PALI Sy rie ETO

INDEX

Page

Opinions below ___ 1

eS SA Ss ae SE led Ae eee AOA 1

pe IN og as 2

I pel Seiad icra ae 2

Argument ___ SEAT PANIC SS ADOT CET 5

Ne 13

CITATIONS

Cases:

Adickes v. Kress & Co., 398 U.S. 144 _ 11

Aguilar v. Texas, 378 US. 108 . 7

Cohen v. United States, 378 F.2d 751,

certiorari denied, 389 U.S. 897 .- 11

Draper v. United States, 358 U.S. 307. ‘ 7

Hamling v. United States, 418 U.S. 153 12

Hormel v. Helvering, 312 U.S. 552 _ 11

Jenkins v. Georgia, 418 U.S. 153 12

Lee Art Theatre v. Virginia, 392 U.S.

SE ie ee eat BON Oe RS a 9,11

Marcus v. Search Warrant, 367 U.S. 717. 9,10

Miller v. California, 413 U.S. 15 13

Mishkin v. New York, 383 U.S. 502 13

Nardone v. United States, 308 U.S. 338. 10,11

Perial Amusement Corp. v. Morse, 482 F.

URED SE ae aoe ene 11

Roaden v. Kentucky, 413 U. S. 496 - 9

Spinelli v. United States, 393 U.S. 410 6-7

Stanford v. Texas, 379 U.S. 476 - 9

United States v. Cangiano, 491 F. 2d 906,

certiorari denied, 419 U.S. 904 11

*

OME De SAMS TARA

Cases—Continued

United States v. Culotta, 413 F.2d 1343,

certiorari denied, 396 U.S. 1019 |

United States v. Harris, 403 U.S. 573

United States v. McCoy, 478 F.2d 176,

certiorari denied, 414 U.S. 828

United States v. Sherpix, Inc., 512 F.2d

United States v. ‘Unger, 469 F.2d 1283,

certiorari denied, 411 U.S. 920

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

Statutes:

18 U.S.C. 371

18 U.S.C. 1462

18 U.S.C. 1465

Miscellaneous:

Funk & Wagnall’s Standard College Dic-

tionary (1966)

Thompson and Starkman, The Citizen In-

formant Doctrine, 64 J. Crim. L. & C.

163 (1973)

Webster’s Third New International ‘Dic-

tionary (1971)

7-8

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-236

MICHAEL KUTLER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The court of appeals affirmed without opinion (Pet.

App. A). The order of the district court is not re-

ported (Pet. App. B).

JURISDICTION

The judgment of the court of appeals (Pet. App.

A) was entered on June 20, 1975. A petition for re-

hearing and rehearing en banc was denied by the

(1)

ORDA SEE AL IY PONIES OO R AR beh Dar OS ee an ee vier

2

court of appeals on July 15, 1975 (Pet. 1). The peti-

tion for a writ of certiorari was filed on August 14,

1975. The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

1. Whether there was probable cause to believe that

the films “P” and “Getting It On” had been shipped

in interstate commerce,

2. Whether search warrants in obscenity cases

must be supported by a higher degree of probable

cause than in other cases.

3. Whether petitioner was entitled to a hearing on

his mid-trial motion to suppress the movie “It Hap-

pened In Hollywood.”

4, Whether a survey of contemporary standards

was properly found inadmissible at trial.

5. Whether contemporary community standards

should be measured by the standards of patrons of

“adult theaters.”

6. Whether the films at issue are obscene.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Pennsylvania, peti-

tioner wzs convicted of interstate transportation of

obscene films by common carrier, in violation of 18

U.S.C. 1462 (Counts 1 and 2). Petitioner was also

convicted of conspiracy to commit those offenses and

to transport obscene films in interstate commerce for

distribution, in violation of 18 U.S.C. 1462, 1465,

3

and 371 (Counts 5 and 6).' Petitioner was sentenced

to three years’ imprisonment on Counts 1, 2, and 5.

Two and one-half years of each sentence were sus-

pended, with the remaining six month terms to be

served concurrently. He was also fined $2,000 each on

Counts 1 and 2 and $1,000 on Count 5. Petitioner

was sentenced to three years’ probation on Count 6,

with the condition that he refrain from transporting

obscene material into the Western District of Penn-

sylvania. The court of appeals affirmed without opin-

ion (Pet. App. A).

1. In 1973 petitioner was the operator of the Amer-

ican Management Company in Cleveland, Ohio. In

that capacity he hired Randy Flynn to manage the

Penthouse Adult Theater in Pittsburgh and later as-

signed Flynn to manage the Liberty Theater in Pitts-

burgh (Tr. 38-39, 293-295). Employees of the the-

aters were paid by American Management and peti-

tioner received the theaters’ receipts (Tr. 39-40, 301).

At petitioner’s direction Flynn frequently picked

up films for the Liberty Theater at the Greyhound

Bus Station (Tr. 44, 95). Petitioner told Flynn that

the films were hard-core pornography (Tr. 48).

In early 1974, Flynn obtained from petitioner at

the Roxy Theater in Cleveland two copies of a movie

entitled “It Happened In Hollywood” and transported

the film by Greyhound Bus to Pittsburgh where it

* Co-defendant Anthony Cesario was convicted of receiving

obscene films in interstate commerce and of conspiracy to do

so, in violation of 18 U.S.C. 1462 and 371 (Counts 3, 4, and 6).

—

4

played at the Liberty Theater (Tr. 49).* Flynn re-

ceived another copy of the movie by mail (Tr. 50).°

Flynn was replaced as manager of the Liberty

Theater about April 1974 by co-defendant Anthony

Cesario (Tr. 38, 119, 153). On April 30, Cesario

phoned the Greyhound Bus Station from the theater

and asked if a package had arrived for him (Tr.

154). Cesario stated to Suzanne Simone, the theater

cashier, that he was not going to “hang” for any-

one, and then went to the bus terminal (Tr. 155).

Cesario returned with a box and said that he had

picked up the film to be shown May 3 (Tr. 156, 159).*

Cesario also told Simone that the next films to be

shown were “P” and “Getting It On” (Tr. 156).

Both were shown at the Liberty Theater on May 3

(Tr. 254).

Agent Peter Marcoline, Jr., of the Federal Bureau

of Investigation (“FBI”), after viewing both films

at the Liberty Theater on May 3, prepared an affida-

vit in support of a search and seizure warrant and

presented it to a United States magistrate (Tr. 254-

255; Pet. App. D). At Marcoline’s request the magis-

trate himself viewed the movies at the Liberty

2 A copy of “It Happened In Hollywood” was seized at the

Roxy Theater in February 1974 (Tr. 48, 325); this movie

was one of the films forming the basis of the Count 5 con-

spiracy charge.

’Flynn testified against petitioner after having been

granted immunity by the district court.

*In testifying about Cesario’s remarks, Simone used the

terms “the film” and “the films” interchangeably (Tr. 156,

170, 181). The return address on the package, which had been

sent from Cleveland, was false (Tr. 295).

5

Theater on May 8 (Tr. 255, 321). The magistrate

then issued the warrant and the films were seized

(Tr. 255-256).

2. The three films, “P,” “Getting It On,” and “It

Happened In Hollywood” were shown at trial (Tr.

309, 312, 336). They depict in close detail various

sexual activities engaged in by one person alone, or

by couples, or by groups of persons.

Petitioner called two expert witnesses. Dr. Robert

Loiselle, a psychologist, testified that the movies “P”

and “Getting It On” do not appeal to prurient inter-

ests since they do not depict painful or violent sexual

conduct (Tr. 463, 476-477). Dr. David Orr, a pro-

fessor of English and student of European Renais-

sance drama, testified that all three films have liter-

ary merit (Tr. 487, 502).

ARGUMENT

1. Petitioner’s hypertechnical objections to Agent

Marcoline’s affidavit, upon which the warrant issued,

are without substance. Read in a “commonsense and

realistic fashion” (United States v. Ventresca, 380

U.S. 102, 108), the affidavit provided an adequate

basis for the magistrate’s finding of probable cause

that the films “P” and “Getting It On” had travelled

in interstate commerce.’

*The portion of the affidavit relevant to the interstate

transportation of the films appears at petitioner’s Appendix

D. The portion of the affidavit that describes the films to be

seized appears in the joint appendix in the court of appeals

at pages C3 through C9. That appendix, which is a part of

the record, is on file with the Clerk of this Court.

J

ec |

Mel DPR Rane AaB NM TBO ST A LAL LES EASILY ORDA he -*

The affidavit showed that on May 1, 1974, Agent

Marcoline saw an advertisement in a local newspaper

that “P” and an unspecified film would be shown at

the Liberty Theater beginning on May 3. On May 1,

Marcoline obtained a copy of a waybill from Assist-

ant Terminal Manager James Tedesco of the Grey-

hound Bus Company in Pittsburgh. The waybill

showed that an 11 pound box was shipped from

Cleveland via Greyhound, a common carrier, on April

30, 1974. The package was addressed to Anthony

Cesario, who picked it up on April 30.

Agent Marcoline also stated in his affidavit that

on May 3 he interviewed Suzanne Simone, a cashier

at the Liberty Theater. Simone stated that Cesario

was the theater manager and that on April 30 he

had telephoned a Greyhound employee and asked

whether a box had arrived for him: Cesario then

said that he was going to the Greyhound Station to

pick up the film to be shown on Friday, May 3. Si-

mone was present when Cesario returned to the thea-

ter carrying a box which he said contained the film

previously mentioned. On May 1 Cesario told Simone

that two films, “P” and “Getting It On,” would be-

gin showing on May 3.

Finally, Marcoline stated that he had viewed the

films at the Liberty Theater on May 3 and that they

were still showing there on May 8.

a. The Greyhound waybill showing that Cesario

picked up a package addressed to him at the time

and place related by Simone sufficiently corroborated

Simone’s information. See Spinelli v. United States,

7

393 U.S. 410, 416-418; Draper v. United States, 358

U.S. 307. Contrary to petitioner’s claim, the cor-

roborating facts were not insufficient because they

were not independently incriminating, since wholly

innocent facts may serve as adequate corroboration.

See, e.g., Draper v. United States, supra, 358 U.S.

at 309-310.

b. Moreover, the affidavit sufficiently established

Simone’s reliability. Unlike the unnamed informants

in Aguilar v. Texas, 378 U.S. 108, and Spinelli v.

United States, supra, Simone was identified by name

and as the cashier at the Liberty Theater. Any skep-

ticism which might properly have greeted informa-

tion gained from an anonymous informant was not

called for here, since the affidavit established Simone

as a citizen witness in a position to know about mat-

ters concerning the theater and the films.’ Contrary

to petitioner’s contention (Pet. 12-13), there is no re-

quirement that the credibility of a citizen witness be

supported by an Aguilar-type statement that the wit-

ness is credible, and in light of all the circumstances

described in the affidavit the magistrate was justified

in determining that Simone was credible without such

a statement having been made. See United States v.

McCoy, 478 F.2d 176, 179 (C.A. 10), certiorari de-

nied, 414 U.S. 828; United States v. Unger, 469

F.2d 1283, 1286-1287 (C.A. 7), certiorari denied, 411

U.S. 920. See generally Thompson and Starkman,

* There is nothing in the affidavit or in the record support-

ing petitioner’s speculation (Pet. 16) that Simone could have

been a professional informant.

mse — |

8

The Citizen Informant Doctrine, 64 J. Crim. L. & C.

163 (1973).

ce. Petitioner’s attack (Pet. 18-19) on the trust-

worthiness of Cesario’s statements to Simone regard-

ing the film contained in the package is likewise in-

substantial. Cesario’s statements were declarations

against penal interest which “carry their own indicia

of credibility—sufficient at least to support a finding

of probable cause to search.” United States v. Harris,

403 U.S. 573, 583.’

d. Petitioner urges (Pet. 21-22) that even if there

was probable cause to seize the movie “P,” there was

no reason to believe that the movie “Getting It On”

was transported in interstate commerce. The issue

arises from inconsistent uses of the word “film.”

In his affidavit Marcoline stated that he had seen

an advertisement for a showing of “P” and an addi-

tional unspecified film; that Simone heard Cesario

say on April 30 that “he (Cesario) was going * * * to

pick up the film to be shown commencing Friday, May

3” (Pet. App. D, p. 38); and that Simone had seen

Cesario enter the theater carrying a box which he

said contained “the film above mentioned” (ibid.).

Petitioner claims that the last use of the word

“film” above must refer only to the movie “P” because

“P” is the only movie “above mentioned.” However,

7 Petitioner urges that “Cesario did not admit a crime but

only receipt of a film which was later judged to be obscene”

(Pet. 19). That asserted distinction is of doubtful relevance

in light of the content of the films, and is further weakened

by Cesario’s remark prior to picking up the films that he did

not want to “hang” for anyone (Tr. 155).

GES RAL POI IE OI LEE IIL A IIL: IEG NE EA

RII Pe! ee al Re a

9

it was reasonable for the magistrate to assume that

the word “film” was used as a plural rather than, or

as well as, a singular noun. Webster’s Third New

International Dictionary 850 (1971); Funk & Wag-

nall’s Standard College Dictionary 498 (1966). The

affidavit refers to the newspaper advertisement that

two films would be shown at the Liberty Theater on

May 3. Cesario advised Simone that he had picked

up the film to be shown on May 3 and that “P” and

“Getting It On” would both be shown commencing

on that date. On May 3 Marcoline viewed both “P”

and “Getting It On.”

In sum, the affidavit contained sufficient facts from

which the magistrate could conclude that there was

probable cause to believe that both movies travelled

in interstate commerce.

2. Petitioner contends (Pet. 20-21) at seizure of

obscene materials must be founded on « higher degree

of probable cause than is required in other circum-

stances. The cases upon which petitioner relies, how-

ever, do not support this proposition,* and in any event

the affidavit here satisfied any reasonable standard of

probable cause. In addition, the magistrate himself

* Both Marcus v. Search Warrant, 367 U.S. 717, and Lee

Art Theatre Vv. Virginia, 392 U.S. 636, held that police officers’

conclusory assertions of obscenity were inadequate bases upon

which to issue warrants. No claim is made here that the

assertions of obscenity were conclusory. In Stanford v. Texas,

379 U.S. 476, this Court held simply that when the items to

be seized may warrant First Amendment protection, they must

be described with sufficient particularity to avoid the evils of

a general warrant. Roaden v. Kentucky, 413 U.S. 496, held

only that the warrantless seizure of films was unreasonable

absent exigent circumstances.

THR

ra ie hs oe

wire

Te a

10

viewed the films (Tr. 255). Thus the magistrate was

given full opportunity to “focus searchingly on the

question of obscenity”; and the procedures here were

adequate “to avoid suppression of constitutionally pro-

tected publications.” Marcus v. Search Warrant,

367 U.S. 717, 731, 732.

3. Petitioner contends that a hearing should have

been held on his motion, first made in the middle of

trial, to suppress the film “It Happened In Holly-

wood” (Pet. 23-25). Petitioner’s claim that he was

surprised at the government’s offer of this evidence

is without merit: prior to trial the prosecutor, in re-

sponse to a motion for discovery, informed petitioner

that the film, as well as several others which were

also identified by name, might be shown at trial (Tr.

327). Local police officers acting pursuant to a war-

rant had seized “It Happened In Hollywood” from

petitioner’s Roxy Theater in Cleveland well before

trial (Tr. 323-325). The district court denied peti-

tioner’s mid-trial motion to suppress on the ground

that it was untimely and because it appeared from

the evidence that the film had been legally seized (Tr.

328-329).

The district court correctly determined that the

mid-trial motion for a hearing was untimely. See

Nardone v. United States, 308 U.S. 338, 341-342.

Moreover, petitioner presented to the court no reason

why the film should have been suppressed or why

a hearing was necessary (Tr. 326-330). Absent an

assertion that the motion was based on facts which

might arguably warrant suppression, a hearing was

not required. Nardone v. United States, supra, 308

PRE ere ey

CNG OTTER A LOPE EDA SAILS TNE EA BE te EE SN LN

11

U.S. at 342; United States v. Culotta, 413 F.2d 1343,

1345 (C.A. 2), certiorari denied, 396 U.S. 1019;

Cohen v. United States, 378 F.2d 751, 760-761 (C.A.

9), certiorari denied, 389 U.S. 897.

Petitioner states (Pet. 22-23) that the Cleveland

magistrate who authorized the seizure of “It Hap-

pened In Hollywood” had not previously viewed the

film and notes that the constitutionality of such a

procedure was specifically reserved in Lee Art Thea-

tre v. Virginia, supra, 392 U.S. at 637. Petitioner

did not, however, raise this issue at trial. Moreover,

the affidavit underlying the Cleveland warrant is not

part of the record and so it cannot be determined whe-

ther it might have been sufficiently descriptive for

the magistrate to make an objective determination

on the issue of obscenity without viewing the film. In

these circumstances, the issue is not properly pre-

sented to this Court. Hormel v. Helvering, 312 U.S.

552, 556; see Adickes v. Kress & Co., 398 U.S. 144,

147, n. 2.°

4. Petitioner contends that the district court erred

in excluding the results of a survey purporting to

show contemporary community standards (Pet. 25-

28). The survey asked interviewees whether or not

they favored the showing of films containing explicit

sexual material (Tr. 386). The trial judge found

® We believe, in any event, that a magistrate need not in all

cases view the film to be seized prior to issuing a warrant.

See United States v. Sherpiz, Inc., 512 F.2d 1361, 1368-1369

(C.A.D.C.); Perial Amusement Corp. Vv. Morse, 482 F.2d 515,

524 (C.A. 2); see also United States v. Cangiano, 491 F.2d

906, 913 (C.A. 2), certiorari denied, 419 U.S. 904.

12

the survey inadmissible on the grounds that “the

answers to the questions would not be relevant or

probative as to community standards with respect to

these particular movies * * * because there is more

than just explicit sexual conduct in these movies and

there is more than deviant conduct” (Tr. 388).

Without disputing the general proposition that sur-

veys of community standards are admissible in ob-

scenity cases, we submit that surveys, like any other

form of evidence, must be relevant to the case under

consideration to satisfy threshold requirements of ad-

missibility. The district court retains broad discre-

tion in determining relevancy (Hamling v. United

States, 418 U.S. 87, 124-125), and the district court

did not abuse that discretion in excluding the evi-

dence once it had found that the survey “is not pro-

bative of anything with respect to the community

standards that would apply in this case * * * [since]

the questions asked * * * do not cover the conduct * * *

as depicted in the movie” (Tr. 388-389). Cf. Jenkins

v. Georgia, 418 U.S. 153; Hamling v. United States,

supra, 418 U.S. at 108-110.

In any event, an expert witness called by petitioner

testified that under “contemporary norms” the films

do not appeal to prurient interests (Tr. 463), and pe-

titioner’s counsel argued to the jury that the films

were not obscene on the basis of that testimony (Tr.

595). Thus, even if it was error to exclude the sur-

vey, the error was harmless. Hamling v. United

States, supra, 418 U.S. at 108-110.

5. Petitioner asserts that the patent offensiveness

of films challenged as obscene should be judged by the

13

standards of those who attend “adult theaters” (Pet.

28-29). Petitioner bases this contention on Mishkin

v. New York, 383 U.S. 502, in which this Court held

that “[w]here the material is designed for and pri-

marily disseminated to a clearly defined deviant sex-

ual group, rather than the public at large,” the ques-

tion whether it appealed to prurient interests may be

“assessed in terms of the sexual interests of its in-

tended and probable recipient group” (383 U.S. at

508, 509). But the films here were not designed for

any identifiable deviant sexual group and they were

disseminated to the general public. Mishkin is there-

fore inapposite.

6. The jury was instructed in accordance with the

standards set forth in Miller v. California, 413 U.S.

15, 24, and the films fall squarely within the “plain

examples” of obscenity noted in Miller (id. at 25).

There is, accordingly, no need for this Court further

to review the issue.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

PETER M. SHANNON, JR.,

JAMES A. HUNOLT,

Attorneys.

OCTOBER 1975.

wWiou.s. GOVERNMENT PRINTING OFFICE; 1975 595476 84