Appeal from a conviction of attempting to introduce goods into the United States by means of a false statement, 18 U.S.C. § 542, and smuggling goods into the United States, 18 U.S.C. § 545, after a jury trial before the United States District Court for the Eastern District of New York, Henry Bramwell, Judge.
Feinberg, Chief Judge, Oakes and Winter, Circuit Judges.
Ralph Borello appeals from his conviction of attempting to introduce "adult" films into the United States by means of false statements, in violation of 18 U.S.C. § 542 (1982),*fn1 and smuggling the films into the United States, in violation of 18 U.S.C. § 545,*fn2 after a jury trial in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge. Both counts involved the same material, namely five cartons of films containing some 771 so-called hard-core pornographic films. The conviction resulted in a $5,000 fine and concurrent maximum prison terms under the two statutes, two years for violating section 542 and five years for violating section 545. Borello makes a multifaceted attack on the judgment, challenging various aspects of the indictment, the evidence, the jury charge, and the sentence. Several of his claims are meritless, but at least one -- the improper admission of a government witness's cooperation agreement -- requires that we reverse and remand for a new trial.
The Government's evidence showed that on three occasions between November 1980 and June 1981 Ralph Borello arranged for the importation of films into this country. On all three occasions, Borello relied on the services of Vincent Montello, a licensed customs broker, who subsequently became a principal Government witness testifying under an immunity agreement. In November 1980, Borello used the pseudonym "Ralph Parker," purporting to represent "Abe's Electronics," evidently a non-existent company having Borello's own home address and telephone number. Borello learned from Montello that films could be admitted without screening by the Customs Service if the importer signed a "request for waiver of screening" representing that the films contained no depictions of human sexual organs or conduct.*fn3 In addition, the request for waiver of screening requires that the films be identified by title or category. Borello signed several importation forms, including a request for waiver of screening, identifying the films as "Adventure Films (Westerns, Sci-Fi, Suspense)." The films were not screened and were delivered to Borello's home address by Montello's regular trucker. Borello received a set of the Customs documents from Montello and paid the duty on the films in cash. Borello was not charged with any offense in connection with this importation, evidence of which went only to his knowledge and intent.
Four months later, Montello received a telephone call requesting that he prepare documentation for the importation of another shipment of films to be delivered to "Ralph" at Borello's home address for "Kalins Cinema, Ltd.," another fictitious company with the same address and telephone number as Borello. After "Ralph" advised Montello that there was no explicit sexual conduct in the films, Montello filed a request for waiver of screening, identifying the films as "Science fiction, Westerns, Drama, adventure." The Custom officials approved the films' release, and the films were delivered to Borello's home address. Borello personally took delivery of and signed a receipt for the films. He was not charged in connection with this shipment, either.
The charges brought against Borello arose out of a June 1981 importation. Montello received a telephone call requesting that he broker the importation of a film shipment, this time on behalf of "Triad Communications," again a fictitious company with Borello's home telephone number. As with the March shipment, Montello filled out the documents, including a request for waiver of screening. The completed package of documents that he submitted to the Customs Service listed Triad Communications as the consignee; the shipment invoice was addressed to "Ralph"; the shipping documents identified "Ralph" as the Triad representative. On this occasion, however, the Customs inspectors were not satisfied with the request for waiver of screening, which failed to identify the films in any way. In response to a query from Customs about the titles of the films, Montello called Borello's home number and spoke to a man named "Ralph" who gave him a list of titles: "Saturday Night Fever," "Star Wars," "Grand Prix," "Barracuda," and "Quo Vadis." Montello then prepared and submitted to Customs another document containing this list.
After receiving the document, one of the Customs inspectors conducted a spot check. The first film taken from one of the cartons was "True Grit," which was not on the list. He dug deeper into the carton and withdraw a black and white cardboard box with a pastoral scene on it. Upon opening, the box proved to cover a smaller box that bore pornographic pictures and contained a sexually explicit film as well as a brochure advertising several other pornographic films. The shipment was then seized. It appears that nonpornographic films were packed on the top and bottom levels of each large carton, while the rest of the carton contained pornographic films. In all, the five cartons contained 810 films, 771 of which are sexually explicit.
Borello's mother and another witness testified for the defense that Borello worked as a mechanic or manager of mechanics, servicing video or "peep show" machines at Show World in the Times Square area of New York City. Government testimony had established that Show World offers live sex shows, adult films, and coin-operated peep show machines in which 8mm films such as those found in the cartons can be observed by customers. After the Government threatened to offer to show the films to the jurors, defense counsel signed a stipulation to the effect that the request for waiver of screening was inaccurate.*fn4 A thirty-five page inventory of the film titles contained in the shipment was attached to the stipulation. A number of those titles were sufficiently explicit to be unpleasant,*fn5 to say the least. The prosecution over objection was permitted to pass to the jury the inventory and one of the pastoral boxes masking another box that in turn contained an adult film called "Der Spanner" -- translated as "The Voyeur" -- and a twenty-six page brochure depicting still scenes from a series of sexually explicit films. At the judge's suggestion, the jurors were told they could "open it up if you want." The judge apparently studied the jurors' reaction, because he reported at sentencing that only one woman juror, but all of the men jurors, had opened the carton and looked at the brochure and film.
A. The Relationship Between Sections 542 and 545
Count I, charging a violation of section 542, closely resembles Count II, charging a violation of section 545. Indeed, the only difference between the counts is that Count I states that Borello
did enter and introduce and attempt to enter and introduce into the commerce of the United States imported merchandise, that is, five cartons of motion pictures, by means of false statements and by means of false and fraudulent invoices, declarations and other false and fraudulent papers,
While Count II states that Borello,
with intent to defraud the United States, caused a false and fraudulent invoice and other false and fraudulent documents and papers . . . to be made out, and caused his agent, Vincent Montello, to pass and attempt to pass said documents through the custom house at John F. Kennedy Airport in order to secure the importation of five cartons of motion pictures into the United States and their entry in the commerce of the United States.
Borello argues that the indictment is defective on three alternate grounds, all of which he raised in pretrial motions. First, he argues that the conduct alleged in the indictment does not constitute a violation of section 545. His second argument is that he cannot be punished for violating both sections 542 and 545 because both involve the same offense. Third, he urges that section 542 must at least have been charged as a lesser included ...