United States v. Battista

646 F.2d 237
Court of Appeals for the Sixth Circuit·Decided April 6, 1981·No. Nos. 79-5165, 79-5257 to 79-5260·Published·Cited by 47 cases

Opinion

WEICK, Circuit Judge.

Defendants have appealed to this court from the judgment of conviction and sentence entered by the district court upon a verdict of guilty returned by a jury in their second trial on an indictment charging them with conspiracy to violate the obscenity statutes, 18 U.S.C. § 1462 and § 1465 by transporting the obscene film Deep Throat [240]*240in interstate commerce.1 Three of the defendants who were tried, Angelo Miragliotta, Anthony Novello, and Mario De Salvo were found not guilty and the charges were dismissed as to them. The defendants found guilty were sentenced as follows: Louis Peraino, 3 years, all but 6 months suspended and a fine of $10,000; Gerard Damiano Film Productions, Inc., fined $10,-000; Bryanston Distributors, Inc., fined $10,000; T. Anthony Arnone, 2 years with all but 5 months suspended and a fine of $3,000; Anthony Battista, 2 years with all but 2 months suspended and fined $2,000; Carl R. Carter, imposition of sentence suspended, 5 years probation and fined $1,500; Mell Friedman, 4 months concurrent, 1 year probation and fined $3,000; Michael Cherubino, mistrial declared when jury was unable to agree, charges dismissed.

The appeals were consolidated for oral argument and were submitted to the court on 6 large appendices totaling 3033 pages, 121 transcripts, appellants’ briefs raising many issues with subdivisions; the government’s brief of 114 pages and lengthy oral arguments. It appears to us that these cases have been given very careful consideration by the district judge and also by the jury. As indicated above, one defendant was given probation and fined $1,500, the sentences of imprisonment ranged from 2 months to 8 months and the fines ranged from $1,500 to $10,000 with most in the lower range.

On appeal, the appellants, jointly or severally, when applicable, have questioned the propriety of the proceedings before the grand jury; the constitutionality of the obscenity statute 18 U.S.C. 1465; the sufficiency of the evidence; the seizure of the film; the admission or exclusion of evidence; the closing argument of the Assistant United States Attorney; the court’s instructions to the jury; the court’s failure to discharge the jury prior to the Christmas recess; the sentencing of Louis Peraino.

As we will point out hereinafter none of these contentions has merit and the convictions will be affirmed.

I

The Grand Jury Proceedings.

In the district court, appellants attacked the grand jury proceedings by filing a motion to dismiss the indictment. Prior to the first trial, they made a similar attack which was denied by the court. They contend that the 1974 grand jury which returned the indictment (CR-124) was not properly constituted; that the grand jury did not have probable cause on the issue of obscenity to return the indictment; that the grand jury was not properly instructed on the law of obscenity.

The attack on the 1974 indictment would seem to be irrelevant and misplaced because it was supplanted by a superseding indictment in 1975 being CR-91.

The government strenuously objected to any inquiry into or invasion of the secrecy of the grand jury proceedings. The district court, however, out of an abundance of caution, conducted a lengthy evidentiary hearing. The government called the foreman of the grand jury, Herschel McElroy, who testified. The defendants called two F. B. I. special agents.

A stipulation of facts was approved by all parties and read into the record. The relevant provisions are as follows:

The grand jury which had been impaneled on January 22, 1973, which was extended to June 25, 1973, heard proof concerning the distribution of Deep Throat. On November 15, 1973, this 1973 grand jury viewed the entire film content of Throat at the Tri-State Theater, Memphis, Tennessee. On December 10, 1973, it heard testimony of approximately eight witnesses concerning the conspiracy involving the film.
[241]*241In January of 1974 a new grand jury was impaneled. It continued the investigation of Throat and the conspiracy. Between January and the end of June, 1974, on more than eight occasions, it heard testimony from various witnesses. On May 8,1974, it also went to view the film. After seeing 15 to 20 minutes of it, they decided they had seen enough and elected not to see the remainder.
On May 1, 1974, all three judges in this district entered an order extending the term of the 1974 grand jury until the end of December, 1974. By Court order of July 13, 1974 twelve members of the grand jury were replaced by twelve members that were newly qualified. Eleven of the original members of the 1974 grand jury elected to continue to serve for the second six month period.
During early August of 1974, the 1974 grand jury heard testimony of five witnesses concerning the conspiracy surrounding Throat. [From November 1973 through August of 1974 the grand jury heard testimony of more than sixteen witnesses; a number of witnesses cited above in certain cases were witnesses who were called back.]
On August 15, the 1974 grand jury returned the indictment in the case styled CR 74-124 naming as defendants Anthony Joseph Peraino, Louis Peraino, Robert J. DeSalvo, T. Anthony Arnone, Anthony Battista, Mario DeSalvo, Gerard Damiano Film Productions, Inc. and AMMA Corporation.
In January of 1975 a new grand jury was impaneled. It continued to hear proof concerning the investigation of the conspiracy involving Throat. On June 13, 1975, this grand jury returned a superceding indictment styled CR 75-91 naming as defendants each of the ones previously named in CR 74-124 and adding the following defendants: Herbert Nitke, Michael Cherubino, Joseph Peraino, Carl Carter, Mel Friedman, Herbert Streicher, Bryanston Distributors, Inc., Maines & Associates, Inc., and Plymouth Distributors, Inc.
Each of these three grand juries, 1973, 1974 and 1975, was given instructions regarding the law of the definition of obscenity by the Assistant United States Attorney handling the case. These instructions included the Miller test of obscenity. There is no recollection by anyone concerning whether or not children were included in the make up of the average person in the community as that phrase is applied to the definition of obscenity.
This stipulation expressly does not waive the United States’ vigorous objection to this inquiry into the secrecy of the grand jury proceedings regarding this case and this stipulation is subject to any facts revealed at the hearing.
The 1975 grand jury did not see the movie Deep Throat. (Ap. 2951-57).

The indictment and conviction of Joseph Peraino and Plymouth Distributors is being reviewed separately in Appeal No. 79-5081.

Mr. McElroy served as foreman on the 1975 grand jury involved in the investigation of Deep Throat for the entire year. He had seen the movie and testified that two other members of the grand jury had seen it. The indictment was returned in June, 1975.

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Battista, 646 F.2d 237 (6th Cir. 1981).

646 F.2d 237 (United States v. Battista) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Kelvin Mize
814 F.3d 401 (Sixth Circuit, 2016)
United States v. Rouphael
495 F. Supp. 2d 787 (S.D. Ohio, 2005)
United States v. Hardy
92 F. App'x 958 (Fourth Circuit, 2004)
United States v. Skeddle
981 F. Supp. 1074 (N.D. Ohio, 1997)
United States v. Taylor
931 F. Supp. 1447 (N.D. Indiana, 1996)
United States v. Marcus Lacey
53 F.3d 332 (Sixth Circuit, 1995)
Adult Video Ass'n v. United States Department of Justice
853 F. Supp. 263 (W.D. Tennessee, 1994)
United States v. Jerry Wayne Hardin
9 F.3d 1548 (Sixth Circuit, 1993)
United States v. Efrain L. Melendez
995 F.2d 1068 (Sixth Circuit, 1993)
United States v. Reginald Dents
978 F.2d 1259 (Sixth Circuit, 1992)
United States v. Mitcheal Edmonson
962 F.2d 1535 (Tenth Circuit, 1992)
State v. Wages
483 N.W.2d 325 (Supreme Court of Iowa, 1992)
United States v. Ragheed Akrawi
951 F.2d 350 (Sixth Circuit, 1992)
United States v. William A. Freeman
946 F.2d 896 (Sixth Circuit, 1991)
United States v. Chambers
944 F.2d 1253 (Sixth Circuit, 1991)