UNITED STATES v. PERAINO No. 79-5081.
645 F.2d 548 (1981)
UNITED STATES of America, Plaintiff-Appellee, v. Joseph PERAINO and Plymouth Distributors, Inc., Defendants-Appellants.
United States Court of Appeals, Sixth Circuit.
As Amended April 24, 1981.
Henry J. Boitel, New York City, for defendants-appellants.
W. J. Michael Cody, U. S. Atty., Robert M. Williams, Jr., Memphis, Tenn., for plaintiff-appellee.
Before WEICK, LIVELY and KENNEDY, Circuit Judges.
LIVELY, Circuit Judge.
The appellants, along with nine other defendants, were indicted and tried by a jury at Memphis in the Western District of Tennessee for conspiracy to violate federal obscenity statutes, 18 U.S.C. § 1462 and § 1465, by transporting the film "Deep Throat" in interstate commerce. At a joint trial the defendant Joseph Peraino was found guilty, sentenced to 18 months with all but 6 months suspended and fined $10,000; Plymouth Distributors, Inc. was fined $8,000. Five other defendants were found guilty, three were acquitted by the jury and the charges against one were dismissed when the jury was unable to agree as to him.
The appeals of the seven defendants convicted by the jury were consolidated and oral arguments were heard from all counsel. In a decision filed today the court unanimously affirmed the convictions of all but Joseph Peraino and Plymouth Distributors, Inc. United States v. Battista et al., 646 F.2d 237 (1981). Joseph Peraino (hereinafter Peraino) and Plymouth Distributors, Inc. (hereinafter Plymouth) raised an issue common only to themselves, and the panel determined that a separate opinion is required to deal with this issue.
The film was shown in Memphis in February 1974 and the first indictment was returned there on August 15, 1974. Peraino and Plymouth were not named in the indictment. However, in a superseding indictment returned on June 13, 1975, these defendants were named, along with others, as members of a conspiracy to violate 18 U.S.C. § 1462 (transportation of obscene matter) and 18 U.S.C. § 1465 (transportation of obscene matter for distribution). The indictment alleged overt acts in Memphis only in connection with the film being shown there, none later than March 1974, and later overt acts elsewhere as part of a national conspiracy to transport "Deep Throat" interstate up to the time of the indictment.
There was no evidence linking Peraino and Plymouth with any of the co-conspirators or with the film itself until at least eight months after the Memphis showing. In October 1974 Peraino was seen in Florida with some of the co-conspirators. In November 1974 he received three $275 checks, not shown to be connected with "Deep Throat," from the New Jersey office of the film distributor which handled other films as well as "Deep Throat." The evidence showed that Peraino took over the distribution of the film in December 1974 and moved the distribution center from Florida to New Jersey. He formed Plymouth for
Peraino and Plymouth assert that they were denied First Amendment and due process rights by being required to stand trial in the Western District of Tennessee. They contend that there is no venue "where, during the course of a particular defendant's actual participation in the alleged conspiracy, it was not an objective of the conspiracy to distribute the allegedly obscene material within the Federal district." They argue that "expression" may be suppressed as obscene only in those places where it is found so under local community standards. Since these standards vary from place to place, due process is violated by enforcing a venue provision which has the effect of basing conspiracy convictions under §§ 1462 and 1465 on the standards of a community with which the defendant has had no contact. The government responds that under settled conspiracy law each person who joins is held responsible for prior acts of all conspirators in furtherance of the purpose of the conspiracy and that venue is properly laid in the district of any overt act.
Though Congress apparently recognized that obscenity posed a national problem in enacting 18 U.S.C. §§ 1461-1465, the Supreme Court has held that there is no national standard by which material can be judged to determine whether it is obscene. Miller v. California, 413 U.S. 15, 30-33, 93 S.Ct. 2607, 2618-19, 37 L.Ed.2d 419 (1973). "To require a State to structure obscenity proceedings around evidence of a national `community standard' would be an exercise in futility." Id. at 30, 93 S.Ct. at 2618 (emphasis in original). Instead, even in federal prosecutions for transporting allegedly obscene materials in interstate commerce, the material must be tested by "contemporary community standards." Hamling v. United States, 418 U.S. 87, 104-07, 94 S.Ct. 2887, 2900-2902, 41 L.Ed.2d 590 (1974). As a practical matter this becomes the standard of the "community" from which the jury is drawn.
Id. at 104, 94 S.Ct. at 2900 (emphasis added).
Id. at 105-106, 94 S.Ct. at 2901-02. As Justice Brennan explained, "It may be that the Court's unarticulated assumption is that jurors instructed to apply `national' standards will inevitably apply the standards of their local community, because national standards are simply `unascertainable.'" Id. at 151 n.5, 94 S.Ct. at 2924 n.5 (dissenting opinion). That community standards will vary throughout the nation may be said to serve the principles of the First Amendment.
Miller, supra, 413 U.S. at 32 n.13, 93 S.Ct. at 2619 n.13. "People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." Id. at 33, 93 S.Ct. at 2619.
Venue for federal obscenity prosecutions lies "in any district from, through, or into which" the allegedly obscene material moves, according to 18 U.S.C. § 3237. This may result in prosecutions of persons in a community to which they have sent material which is obscene under that community's standards though the community from which it is sent would tolerate the same material. See United States v. Blucher, 581 F.2d 244 (10th Cir. 1978), vacated, 439 U.S. 1061, 99 S.Ct. 823, 59 L.Ed.2d 27 (1979).
When this liberal venue rule is applied in a prosecution for conspiracy to violate the federal obscenity laws, as in the present case, a constitutional issue is presented. The material is entitled to First Amendment protection except where it violates community standards. Here, in addition to distributing "Deep Throat" in Memphis, where it was illegal, the conspirators were engaged in its distribution in other communities where it was not shown to be illegal, and therefore is presumed to be legal. Venue in an obscenity conspiracy case must be based on the allegedly obscene material once being present in the district, 18 U.S.C. § 3237, and either on the conspiracy being formed there or on an overt act taking place there, see Brown v. Elliott, 225 U.S. 392, 400, 32 S.Ct. 812, 815, 56 L.Ed. 1136 (1912). A person who enters into an agreement to distribute the material after the venue-setting act is not constitutionally subject to prosecution in the district of venue in the absence of some subsequent act or agreement related to the district of venue or another district in which the material is found to be obscene. One who has no connection with the district of venue at the time of the venue-setting act may not be convicted there for subsequently transporting the materials into other communities whose standards were not established. Merely joining the conspirators in their lawful distribution efforts in other communities after the film was no longer being shown in Memphis does not evidence intent to further or advance the illegal purpose of the conspiracy to ship the film into Memphis. Absent any evidence of adherence to the criminal purposes of the conspiracy, defendants Joseph Peraino and Plymouth Distributors cannot be held to have become members of the conspiracy. See United States v. United States Gypsum Co., 438 U.S. 422, 443 n.20, 98 S.Ct. 2864, 2877 n.20, 57 L.Ed.2d 1161 (1978) (intent to effectuate the object of a conspiracy is a necessary element of membership in the conspiracy); LaFave & Scott, Criminal Law, 470 (1972).
The general rule that one who joins a conspiracy at any time before it ends may be held responsible for acts and agreements which took place before he joined, e. g., United States v. Cimini, 427 F.2d 129, 139 (6th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), does not control when First Amendment rights are at stake. In most cases the illegal purposes of a federal conspiracy will be illegal in every federal jurisdiction. However, when the agreement alleged is one to distribute materials which constitute expression, the agreement may have both legal and illegal purposes depending on varying community
The government relies primarily upon Hamling v. United States, supra, and United States v. Sandy, 605 F.2d 210 (6th Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979), in arguing that Peraino and Plymouth could be tried and convicted under the Memphis community standards for agreements and acts which long predated their involvement with "Deep Throat." Both cases are distinguishable. In neither case did any of the conspirators join the conspiracy after the acts occurred upon which venue was based. In Hamling conspiracy and venue questions were not at issue. In Sandy, this court held that the district court was not required to apply a multitude of local standards, depending on the distribution area which each distributor served. It stated:
Id. at 218. The quoted language does not answer the question raised in the present case because all of the conspirators in Sandy were members at the time of the mailing of material into a community where it was obscene by local standards. What Sandy establishes is that a member of a conspiracy may be tried and convicted under the community standards of a jurisdiction to which obscene materials are sent while he is a member of the conspiracy, though an individual conspirator need not have been personally involved in any of the venue-setting acts. This is so because every conspirator is liable for acts of other conspirators designed to further the purpose of conspiracy. In Sandy that purpose included distribution at the place of trial after each conspirator had joined. The only respect in which Peraino and Plymouth may be considered part of the ongoing conspiracy is that they continued the interstate distribution of "Deep Throat" after December 1974. However, there was no evidence that they agreed with anyone to distribute it to communities under whose standards it would be obscene. In fact, the only evidence is just the contrary.
The present case clearly is not controlled by Sandy. That case involved a "wheel" type conspiracy. The district court in Sandy found that individual conspirators who were subdistributors of a film ("spokes" of the wheel) owned by another distributor (the "hub" of the wheel) had agreed among themselves that they would forward the film to other communities if requested rather than return it to the "hub" after showing it. This agreement provided the "rim" of the wheel and tied all the conspirators together in a common enterprise. 605 F.2d at 216. This court held:
Id. at 217 (emphasis added). Again, there was no issue in Sandy of the liability of one who joined the conspiracy after the last overt act in Memphis occurred. Insofar as Peraino and Plymouth are concerned, they were part of a "chain" rather than a "wheel" conspiracy. Sandy affirmed that each conspirator need not have personal contact with the place involved in the indictment. It did not concern the question of membership in the conspiracy at the time of the venue-setting act.
Though the reasons for its summary reversal are not clear, the Supreme Court's action in Blucher v. United States, supra, does raise a question which is pertinent to this case. In Blucher an Oregon postmaster requested a Wyoming postmaster to solicit materials by mail, under a false name, from an Oregon resident. There was no apparent reason for this strategem except the possibility that a Wyoming venire would apply a more restrictive community standard than one drawn from the Oregon district. The defendant was indicted under § 1461 and tried in Wyoming. His only contact with Wyoming consisted of mailing the materials to that state. Blucher was convicted and the Tenth Circuit, on the basis of Hamling, supra, affirmed with obvious misgivings. 581 F.2d 244 (1978). The Supreme Court vacated the judgment and remanded with directions that the indictment be dismissed. 439 U.S. 1061, 99 S.Ct. 823, 59 L.Ed.2d 27 (1979). Since similar government conduct — solicitation of materials by a postal inspector using a false name — had been approved by the Court in Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), it may be presumed that the government's blatant forum shopping, not present in Smith or Hamling, was the reason for reversing Blucher. If so, the present case is much stronger for reversal. The defendant in Blucher did mail into Wyoming matter which a jury there found to offend community standards. Peraino and Plymouth Distributors had nothing to do with "Deep Throat's" Memphis presence.
The government offered no proof of the community standards of any community to which Peraino and Plymouth caused "Deep Throat" to be sent. The court's instructions allowed the jury to apply standards of the jury's own community. Thus we do not reach the question of whether venue in the Western District of Tennessee could have been upheld by submitting to a jury of that district the issue of whether "Deep Throat" offended the standards of any other community — without regard to the standards of the trial district — to which these defendants agreed to transport the film.
Id. at 426-27 (emphasis in original). This language points out the inherent difficulty of attempting to prosecute national conspiracies under the federal obscenity statutes in a single district.
One statement in the dissent requires a reply. The dissent states that "the stipulation
The convictions of Joseph Peraino and Plymouth Distributors, Inc. are reversed with directions to dismiss the indictments against them.
WEICK, Circuit Judge, dissenting:
I respectfully dissent.
Joseph Peraino and Plymouth Distributors, Inc. contend principally that the district court did not have venue jurisdiction over them since they had joined the conspiracy some eight months after the obscene film Deep Throat had been shown in Memphis. They argue that if each district where the film previously had been distributed had jurisdiction that this would subject them to varying community standards the details of which they had no knowledge and in violation of their constitutional rights. They offered no proof, however, of different community standards except self-serving statements and opinions from their own past employees. Here the conspiracy in which these defendants joined was of national scope even though they later restricted the territory in which they operated. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Sandy, 605 F.2d 210 (6th Cir. 1979), cert. den., 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979). These defendants never withdrew from the conspiracy.
Their contentions conflict with the fundamental law of conspiracy. A conspirator need not join a conspiracy at its inception, in order to become liable as a conspirator. When he joins the conspiracy, he is bound by the prior acts and statements of other conspirators made in furtherance of the common objective which, in this case, was the distribution of an obscene movie Deep Throat in interstate commerce. United States v. Cimini, 427 F.2d 129 (6th Cir. 1970), cert. den., 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 reh. den., 400 U.S. 984, 91 S.Ct. 364, 27 L.Ed.2d 396 (1971). These defendants as the jury found had full knowledge of the details of the obscene film and of community standards. The government, however, was not required to prove that each conspirator was familiar with each and every detail of the conspiracy. United States v. Mishkin, 317 F.2d 634 (2nd Cir. 1963), cert. den., 375 U.S. 827, 84 S.Ct. 71, 11 L.Ed.2d 60 (1963). From the time that the agreement is entered into, the crime of conspiracy is a continuing crime from its inception to its conclusion. Prosecutions for conspiracy may be made either where the conspiracy was formed or where any overt act in furtherance of the conspiracy was committed. United States v. Downing, 51 F.2d 1030 (2nd Cir. 1931). Even an overt act not pleaded in the indictment may be used. Brown v. Elliott, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136 (1912); United States v. Downing, 51 F.2d 1030 (2nd Cir. 1931). Only slight evidence is necessary to connect a defendant with a conspiracy. United States v. Chambers, 382 F.2d 910 (6th Cir. 1967).
The stipulation entered into by all of the parties clearly established venue in the Western District of Tennessee. These defendants are bound by their stipulation.
Joseph Peraino was no novice. As the majority concedes, Peraino took over the distribution of the film in December 1974 and moved the distribution center from Florida to New Jersey. He organized
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