Clyde DeWitt is on vacation. We are re-printing one of his columns from the October 2001 issue of AVN magazine. Chillingly, it is perhaps more relevant today than when first printed.
With the specter of the Bush-Ashcroft Administration bringing obscenity prosecutions in situations where only adults are involved, there has been much conversation about how the Miller test is so vague, uncertain, unreasonable, and unfair. The line between erotica that is protected by the First Amendment and that which is not has been described by one Supreme Court justice as a "dim and uncertain" one - another, for the same reason, has described the business of distributing such materials as "dicey," because being on the wrong side of that line can land you in prison.
However, anyone who thinks anti-obscenity statutes are the most oppressive of all is not yet familiar with the law of conspiracy. "The most chickenshit law" on the books, is how a federal judge privately described the federal conspiracy statute to the author of this column. A conspiracy defendant can be convicted based upon activities of which s/he had no knowledge and based in part upon conversations that s/he did not hear.
The underpinnings of conspiracy laws appear reasonable. The analysis begins with the idea that two people or a group of people can cause considerably more mischief than one person acting alone, a theory which Lee Harvey Oswald and Timothy McVeigh perhaps have called into question.
The offense of conspiracy has it roots in early 17th-Century England. After two guys got together and mapped out a crime, they failed in the execution. From an odd set of facts, circa 1611 - Poulterer's Case - arose the principle that a crime of "conspiracy" was committed under those circumstances. An agreement to commit a crime is one offense; the actual commission of the crime is another.
As a result, any criminal offense involving more than one person is almost always two crimes, conspiracy to commit the crime, and the "object" crime itself. Thus, when a bank robber and a getaway driver agree to do a bank job, they are guilty of conspiracy before they leave home. When they finally get around to robbing the bank, they are guilty of the additional crime of bank robbery. They both can be punished for each of the crimes.
Given the fact that utilizing both a robber and a getaway driver can significantly up the chances of a successful bank robbery, perhaps the above is not so unreasonable; and, as the theory goes, a conspiracy alone creates a danger (of a criminal act) that did not exist prior to the conspiracy. Unfortunately, however, this seemingly reasonable principle of law has run amok.
The agreement, and thus the conspiracy, is not difficult to prove. The witnesses' testimony establishes that a car drove up to the bank, the passenger jumped out wearing a ski mask and brandishing a gun, the passenger ran into the bank, robbed the teller and ran out, jumping into the car that then sped away. Because it is inconceivable that this series of events could not have unfolded as it did without some advance planning, the above testimony easily establishes a conspiracy.
Unlike the English Law in the 1600s, the Federal Criminal Code and those of most states require that crimes be defined by statute. Accordingly, the definition of conspiracy varies slightly from place to place. For example, the punishment often varies according to the object offense; and there may be additional elements of the offense, such as the commission by someone of an act in furtherance of the conspiracy or that the object offense be a felony.
Most relevant to everyone, however, is the generally applicable federal conspiracy statute, which very simply says:
"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
"If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."
For you technical folks, other federal conspiracy statutes are acknowledged. However, they apply to specialized situations and therefore are beyond the scope of this analysis.
The important, operative language of � 371 is, "[1] two or more persons conspire either to commit any offense against the United States... and [2] one or more of such persons do any act to effect the object of the conspiracy." Defrauding the United States is a whole different topic; and very few federal crimes are misdemeanors, so the last paragraph is of little consequence.
Analysis of this abominable law begins with identifying the point at which a party "agrees." The example of the bank robber and the getaway driver is straightforward, and generally produces a reasonable result.
Importantly, however, to "agree" implies some knowledge of the terms of the agreement. But what of someone who just doesn't want to know? Some courts have gone so far as to allow what is called an "ostrich" instruction, raising the specter of a conviction of someone who all along wanted to stay out of the way. The jurors may, the judge tells them, "infer knowledge from a combination of suspicion and indifference to the truth." Thus, if "a person had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet shut his eyes for fear of what he would learn," the jury may find that a defendant who tried to stay out of harm's way in fact knew what was up. Thankfully, most of the courts have rejected that notion and required that a conviction cannot result unless the evidence shows that the conspirator in fact knew that the activities had a criminal objective.
Another component of conspiracy is the question of the scope of the criminal activity that was intended. That is particularly important because punishment generally is a function of intent. The seminal Supreme Court case on this issue involved a conspiracy to do serious harm to a person who, unbeknownst to the conspirators when they plotted the crime, was a federal agent. Such an assault usually is not a federal crime, but it is if the victim is a federal agent. The Supreme Court held that, as a general proposition, intent to do felonious evil is sufficient to justify a conspiracy conviction, even if the conspirators were not aware of some of the particulars.
There are many aspects of conspiracy law that are particularly harsh. Two of them are the exception to the hearsay rule allowing co-conspirators' statements and the so-called Pinkerton rule.
If there is independent evidence of the existence of a conspiracy, then a statement made in the course of the conspiracy and in furtherance of the conspiracy is admissible - even if the statement was not made by or in the presence of the defendant. This exception to the hearsay rule can be devastating to a peripheral member of a multi-defendant conspiracy - especially where one of the co-conspirators happens to be a boastful blabbermouth who told everyone who would listen that s/he was part of a group of enterprising and successful gangsters (criminal defense lawyers will tell you that such blabbermouths are commonplace). There are some limitations to this exception to the hearsay rule, but you can imagine the picture that a prosecutor can paint using it.
Even more onerous is the Pinkerton rule. If several people conspire to commit an offense, and thereafter engage in preparatory activity, the offense of conspiracy is complete. For example, assume that our bank robbers had a third conspirator, someone whose function was solely to tune up the getaway car so that it could more quickly flee the scene. S/he is guilty of conspiracy if s/he knows the getaway-car reason why s/he is super-tuning the car, even if s/he does not charge for the services and does not plan to participate in the proceeds. Arguably, the third conspirator could only be convicted of one crime, conspiracy, because s/he did nothing after the preparation was complete. However, the Supreme Court decided to the contrary over a half-century ago in Pinkerton v. United States, 328 U.S. 640 (1946). According to Pinkerton, the third conspirator is guilty of bank robbery if the robbery comes to fruition; like the others, s/he could be spared if it turned out that the bank was closed.
Worse, Pinkerton goes further. It holds that the members of the conspiracy can be convicted of all of the substantive crimes committed in furtherance of the conspiracy. So, going back to our bank-robbery conspiracy, consider the reality that the object of that conspiracy was to take money from the bank using a deadly gun: "Your money or your life," so to speak. In the event that the bank teller opts for the latter, the six 9-mm slugs that get drilled into his or her head as a consequence leave both the getaway driver and the car mechanic guilty of murder, although only if the murder is reasonably foreseeable under the circumstances. According to the latter exception, if the robber decided to buy a couple of ounces of crack while s/he was in the bank waiting for the opportune moment to pull the gun, the car mechanic could not be held responsible for the controlled substance violation where the plan was only to rob the bank.
Where conspiracy law reaches the zenith of absurdity is when it is coupled with anti-obscenity laws. And because conspiracy is every federal prosecutor's favorite weapon, they have parlayed obscenity statutes and conspiracy laws, seeking unthinkable results.
The first such escapade involved efforts to prosecute in Memphis those involved in the production and distribution of Deep Throat. After an extensive 1973 grand jury investigation, federal prosecutors obtained a Memphis indictment for conspiracy to violate the federal obscenity statutes, arising from the transportation of Deep Throat into Memphis. Those charged with the conspiracy included the Los Angeles producer of the film, an actor, and everyone in between. A number of the defendants were acquitted, but the remainder fought the case for years, with varying degrees of success. United States. v. Battista, 646 F.2d 237 (6th Cir. (1981); United States v. Peraino, 645 F.2d 548 (6th Cir. 1981).
Perhaps the most ridiculous use of the federal conspiracy laws in tandem with federal obscenity statutes was the original federal indictment in the so-called "Miporn" case. The case ultimately led to protracted litigation and a long series of published opinions. United States v. Defalco, 509 F.Supp. 127 (S.D. Fla. 1981); United States v. Di-Bernardo, 552 F.Supp. 1315 (S.D. Fla. 1982); United States v. Di-Bernardo, 561 F.Supp. 783 (S.D. Fla. 1983); United States v. Di-Bernardo, 775 F.2d 1470 (11th Cir. 1985), on remand, 657 F.Supp. 500 (S.D. Fla. 1987), aff'd in part, vacated in part, 880 F.2d 1216 (11th Cir. 1989).
In Miporn, federal agents set up a sting operation in Miami, purchasing erotica from all over the United States over a period of over two years. The investigation concluded in 1980. After the federal prosecutors submitted the fruits of it to a federal grand jury, it handed down an indictment charging 45 defendants in a single count of conspiracy to violate the laws prohibiting interstate transportation of obscene material. The overt acts listed in the conspiracy count charged something of a national conspiracy to distribute approximately 100 films and 30 magazines from unrelated suppliers in New York, Chicago, Los Angeles, San Francisco, Baltimore, Cleveland and Fort Lauderdale. This "national conspiracy" supposedly in part arose from the fact that everyone went to the Consumer Electronics Show. According to one opinion,
"the Government presented [to the grand jury] evidence that it assumed would establish a nationwide conspiracy of organized crime individuals who used violence to control the 'pornography industry.' This evidence included repeated references to mafia control and policies of using violence and extortion. In addition, contemporaneously with the presentation of the evidence relating to this 'national' conspiracy to distribute obscene material across state lines, the grand jury heard evidence regarding additional conspiracies to pirate copyrighted films."
Thinking better of the national "conspiracy" idea, the government sought and obtained superseding indictments, each separately charging the various companies and related individuals. Notably, the investigation and indictments in the Miporn prosecutions took place during the Carter administration, before Reagan and Meese.
The last of the Government's stretching of conspiracy laws in an obscenity context is the worst: the prosecution of Video Team, CPLC and Great Western Litho, along with functionaries of each. This took place during the closing years of the Reagan-Bush tyranny.
The case arose from a plea agreement with the owners of a Dallas adult video outlet, by virtue of which the Dallas Police Department assumed control of the store. That having occurred, a Dallas police detective placed several orders, which resulted in UPS shipments of dozens of adult tapes from Los Angeles to Dallas.
The centerpiece of the indictment, of course, was conspiracy. Most of the defendants were convicted, and an appeal was taken to the United States Court of Appeals for the Fifth Circuit. It affirmed the convictions - rejecting the arguments of a so-called "dream team" of First Amendment attorneys including Paul Cambria and John Weston. The court approved two devastating results in an opinion by Judge Edith Jones, oft believed to be on George W's short list for the Supreme Court.
First, the court ratified a deliberate-ignorance instruction with respect to those who, at best, were peripherally involved in the conspiracy and were plainly disengaged from the nuts and bolts of sending the tapes. Under the facts of the case, that is a very oppressive result.
However, the worst component of the opinion was the rejection of the pivotal argument that the defendants could not be convicted without having some knowledge of the "community" to which the materials were directed. After all, something may be obscene in Dallas, but not New York. The court rejected the claim in a footnote:
"[Defendants who were not involved in the actual shipments] raise First Amendment and Fifth Amendment objections to their conspiracy conviction on the basis that these constitutional provisions require very specific knowledge on the part of the defendants: namely, that the defendants must have known that the videos for which they only printed boxes would be distributed to a community where they would be deemed obscene. Defendants' constitutional objections do not move us. First, defendants' arguments assume that the only basis for their conspiracy convictions is their role in printing the boxes for the obscene videos. . . . [K]nowledge that the materials are sexually explicit is the only [knowledge] requirement under [federal obscenity statutes].... The fact that the defendants were prosecuted for conspiring to violate � 1462 - as opposed to violating � 1462 directly - does not change the analysis. Finally, to accept appellants' arguments would allow all such defendants to avoid prosecution 'by simply claiming that [they] had not brushed up on the law.'"
Taken to its logical conclusion - which hopefully it will not be - this reasoning arguably would allow a conviction in Dallas of someone who agreed only to send a tape to New York, but which the post office misdirected to Dallas.
Worse, the trial court in Investment Enterprises gave a Pinkerton instruction. The Government's theory was that if you conspire to send to unknown destinations materials you know only to be sexually explicit you are responsible for the consequences of wherever others send them. The case was never taken to the Supreme Court because the Department of Justice offered a favorable settlement, immortalizing this expansive use of conspiracy laws in obscenity cases. United States v. Investment Enterprises, Inc., 10 F.3d 263 (5th Cir. 1993).
The avalanche of drug-conspiracy prosecutions in the last 20 years has done nothing but strengthen the Government's conspiracy weapon. If it is again used in obscenity cases, constitutional limitations remain to be seen.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
