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United States v. Marti

decided: February 3, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
LUIS MARTI AND LOU SAKS, APPELLANTS



Waterman, Friendly and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Appellant Marti was indicted along with nine other defendants on two counts of conspiracy to transport obscene materials in interstate commerce for the purpose of sale and distribution, in violation of 18 U.S.C. ยง 1465 (1966): (1) for transporting obscene still photographs, and (2) for transporting obscene films. Appellant Saks was indicted on the second count alone. Appellants were tried together before a jury in the United States District Court for the Southern District of New York (the other defendants either became fugitives, pleaded guilty, or received separate trials) and were found guilty on all counts. On March 4, 1969, Judge Tenney sentenced them to two years imprisonment on each count, Marti's sentence to run concurrently. Appellants attack their convictions on several grounds. We hold that the convictions must be reversed since they were obtained through the admission into evidence of materials seized pursuant to unconstitutionally general search warrants.

The relevant facts are quite simple and the sufficiency of the evidence is not in dispute. In early 1966 appellants Marti and Saks both had obscene color films processed by co-defendant Gentile and the transactions were carried out through an intermediary, co-defendant Pelletier. The films depicted various nude males and females engaged in natural and unnatural sexual acts; the obscenity of the films and still photographs is conceded. When Gentile could no longer process films in mid-1966 due to the closing of the laboratories he used, alternate arrangements were made and still photographs were processed by co-defendant Stewart Laboratories. Both Pelletier and Gentile served as intermediaries in these transactions between Marti and the co-defendant agents of Stewart Laboratories. Marketing of the films and photographs was carried out by appellants personally and by co-defendants Goldman and the Delmars (a husband-and-wife team). The interstate nature of the scheme was evidenced by substantial sales in New York during 1965 and 1966 to one Brauer of Baltimore, Maryland, who resold the materials in Maryland at a handsome profit.

I.

Appellants first contend that they were deprived of their rights of confrontation of witnesses and due process under the Sixth and Fifth Amendments when the court below prevented defense counsel from cross-examining a principal government witness, Pelletier, as to his residence. When asked on cross-examination where he lived, Pelletier gave the nonspecific answer, "In Queens." When defense counsel asked him where in Queens he lived, the prosecutor asked for a side bar conference and the following colloquy occurred:

"Mr. Adams: Your Honor, I would request that the address of this witness not be disclosed. I would be happy to furnish to counsel the address if they have any particular purpose, but I do not wish the defendants in this case to know where Mr. Pelletier is living.

The Court: I assume that is agreeable to both counsel.

Mr. Evseroff: I would like to state for the record that I think it is highly improper. * * *

The Court: Well, if in any way, if I permit the question to be answered, I receive any word of any communication being made, I will hold you gentlemen [defense attorneys] responsible.

Mr. Bobick: I don't know how you can hold us responsible.

Mr. Evseroff: Judge --

The Court: That is all."

The cross-examination then continued and Pelletier never testified as to his address. Defense counsel never sought private communication of Pelletier's address from the prosecutor ...


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