United States v. Guarino

Before

Aldrich, Campbell and Breyer, Circuit Judge.

BREYER, Circuit Judge. This case presents seven consolidated appeals from convictions for conspiracy and interstate transportation of obscene films and magazines for sale or distribution. 18 U.S.C. §§ 371, 1465. The defendants attack two searches -- one in Boston and one in Providence -- as unconstitutional under the Fourth Amendment. The briefs have led us to consider a host of "search and seizure" arguments that, given the state of the record, we have found unusually difficult to settle. After thought and debate, two of us have agreed as to the proper approach: We ask whether the search procedures used are likely to put First Amendment protected material unreasonably at risk -- either here or in other, similar circumstances. We conclude that they are not, that the searches were reasonable, and that the convictions should be affirmed.

I

The Boston Search

A. Facts

On the morning of February 28, 1978, FBI agent Lawrence Gilligan presented a detailed affidavit to United States Magistrate Lawrence Cohen in Boston. (See Appendix A.) In essence, the affidavit described how Gilligan and other named agents had seen three trucks deliver cartons from time to time in Boston's "Combat Zone" to stores that regularly sold hardcore pornography. The affidavit indicated that the trucks were owned by Imperial Distributors, Inc., of Rhode Island, or Imperial's owner, Kenneth Guarino. It described how the agents had seen the driver of one truck service "peep show" file machines at 646 Washington Street -- machines that the agents said they had found "invariably displayed . . . hard-core pornography." The affidavit also described how the agents, on two separate occassions within the previous month, had come upon store employees unpacking cartons at 646 Washington Street just after one of the trucks had made deliveries. In the first instance, an agent bought a magazine called "Turkish Delight" that had been unpacked from a box just after a truck with Rhode Island license number 91826 had delivered the boxes to the store at 646 Washington Street. In the other instance, agents bought magazines titled "Sex Foto Fiction No. 1" and "Sex Foto Fiction No. 2" from a box that had been delivered by truck with Rhode Island license number 44457 to the same address. The affidavit stated that these trucks made other deliveries of boxes to other stores that regularly sold pornographic material in the Combat Zone. It concluded by stating that the truck with license number 91826 had been observed being loaded at 8:18 that morning at Imperial Distributors' warehouse in Providence and that the truck then had driven into Massachusetts. The three named magazines were submitted to the magistrate along with the affidavit.

On the strength of the magazines and the affidavit the magistrate simultaneously issued two documents, one entitled "Search Warrant" and the other "Order." The warrant briefly authorized Gilligan and other FBI agents to search the van and seize "a quantity of obscene materials, including books, pamphlets, magazines, newspapers, films, and prints." The order, a more detailed document, specifically stated that the agents were to "search that one truck [with license number 91826] in order to determine whether or not there exists therein obscene materials of the same tenor as Turkish Delight, Sex Photo Fiction No. 1, and Sex Photo Fiction No. 2." These magazines were described as containing "patently offensive representations or descriptions of ultimate sexual acts, normal or pervert[ed], actual or simulated, and . . . lewd exhibition of the genitals." The order stated that the "the average person, applying contemporary community standards, would find the magazines taken as a whole, appeal to the prurient interest."

Upon issuance of the warrant and order at 11:05 a.m., Agent Gilligan telephone other FBI agents in the Combat Zone and told them that a warrant and order to stop and search the truck had been issued. These agents reached the parked truck in the Combat Zone within the next few minutes. The agents opened several cartons and noted (but did not confiscate) material that they believed to be unlawfuly obscene, arrested the driver, and took the truck to the FBI garage. Sometime prior to 11:45 a.m., Gilligan arrived at the garage and delivered the warrant to the driver. The record is silent as to whether the order was attached to the warrent. The agents, including Gilligan, then searched the boxes of material with care and segregated out the materials that they believed fit the description of unlawfully obscene material contained in the order. That afternoon, at the request of the agents, Magistrate Cohen came to the FBI garage, examined the segregated material, and read a second affidavit drawn up by Gilligan; the magistrate then authorized the seizure of five films and eight magazines as unlawfully obscene.

B. Law

The Boston search was conducted for hardcore pornography; the material seized was plainly outside the First Amendment's protection. Miller v. California, 413 U.S. 15 (1973). Nonetheless, the Fourth Amendment's requirement that a search and seizure by "reasonable" must be read in light of the risk that government agents who are seeking to confiscate hardcore pornography will seize other, similar material that does enjoy First Amendment protection. See, e.g., Roaden v. Kentucky, 413 U.S. 496, 501-02 (1973). Our approach to this concern has been to examine the search and seizure as a whole, asking whether the government has demonstrated sufficient sensitivity to First as well as Fourth Amendment concerns by minimizing the risk of interference with the possession and distribution of constitutionally protected material. For the reasons that follow, we believe that it has done so. We conclude that the warrant was issued for probable cause and that, read together with the order, it met constitutional standards of specificity for the search. We further conclude that the search itself minimized the risk of unconstitutional intrusiveness. The government agents were allowed to stop the truck only briefly; they were permitted to search for and segregate, but not otherwise to seize, obscene materials; and they immediately brought the truck and the segregated items to the FBI garage, where the magistrate reviewed the materials and allowed seizure of unprotected materials -- all within a matter of a few hours. Any defects in this procedure did not threaten protected materials here, nor do we see how they might do so in other cases.

1. Probable cause. Having reviewed the detailed affidavit submitted by Gilligan to Magistrate Cohen, we find that Cohen had probable cause to believe that the truck contained unlawfully obscene materials. Cohen was presented with copies of three different magazines supplied by Imperial Distributors to Combat Zone stores, and he properly determined each of the three to be obscene. Agent Gilligan's affidavit established a longstanding pattern of wholesale distribution to numerous shops in the Combat Zone, shops that regularly offered similar (i.e., in Gilligan's view, "obscene") materials for sale. From this information, Magistrate Cohen could reasonably conclude that the Imperial shipment en route to Boston that morning contained material "of the same tenor as" -- that is, as obscene as -- the three magazines presented to him. This conclusion is reinforced if the affidavit is read in an appropriately non-technical, "common sense" manner. See Illinois v. Gates, 51 U.S.L.W. 4709, 4717-15 (U.S. June 8, 1983); United States v. Ventresca, 380 U.S. 102, 109 (1965); Brinegar v. United States, 388 U.S. 160, 176 (1949).

While Gilligan did not explicitly state that Imperial trucks had been shown to carry films, the Boston police officers had observed Imperial cartons that contained a variety of materials, including not only magazines but newspapers and books. In addition, the driver of one of the trucks was observed servicing a "peep show" booth used for sexually explicit films, in the very place -- 646 Washington Street -- to which Imperial made its deliveries of the magazines shown the magistrate. The facts that Imperial (1) repeatedly made wholesale deliveries; (2) of materials some of which the magistrate saw and found obscene; (3) to a shop that sold sexually explicit "peep shows" as well as books; (4) through the use of film machines that Imperial drivers serviced, together gave rise to probable cause that the truck could contain obscene films among the material it was carrying. "Probable cause to believe" is not "definite proof." See United States v. Melvin, 596 F.2d 492, 495 (1st Cir.) (probable cause does not mean "more likely than not"), cert. denied, 444 U.S. 837 (1979); United States v. Bush, 582 F.2d 1016, 1020 (5th Cir. 1978) (presence of obscene materials in one of six cartons in shipment creates probable cause that other five cartons also contain obscene materials); Castle News Co. v. Cahill, 461 F. Supp. 174, 182 (E.D. Wis. 1978) (probable cause to search all items in box when judge examined "fair sample" of contents); cf. State v. Romeo, 165 Conn. 23, 332 A.2d 64 (1973) (evidence that person is taking illegal bets supports reasonable inference that materials to record bets are at site); State v. Hill, 110 N.J. Super. 370, 265 A.2d 820 (1970) (same). But see People v. Superior Court of Los Angeles County, 14 Cal. 3d 82, 90 n.9, 534 P.2d 393, 399 n.9, 120 Cal. Rptr. 697, 703 n.9 (1975) (en banc); Parish of Jefferson v. Bayour Landing Ltd., 350 So. 2d 158,164-65 (La. 1977); Walthall v. State, 594 S.W.2d 74, 78 (Tex. Crim. App. 1980).

We disagree with the defendants that the lapse of time between the most recent deliveries and the planned search was so great that the evidence supporting the warrant was "stale." The affidavit indicated a regular pattern of deliveries of unlawfully obscene materials, and the most recent deliveries had taken place within the previous month. Given the business-like and ongoing nature of the enterprise, the lapse of several days or weeks is not sufficient to weaken the inference of a continuing pattern of delivers, even if the passage of time may weaken quite different inferences in quite different circumstances. See, e.g., United States v. Charest, 602 F.2d 1015 (1st Cir. 1979) (sixteen-day lag between murder and affidavit makes it unlike that the murder weapon remained in suspect's home); 1 W. LaFave, Search and Seizure, § 3.7(a), at 685, 86 (1978).

2. Generality. The defendants argue that even if the warrant was grounded on probable cause, it was too general to statisfy the Fourth Amendment's requirement that warrants "particularly describ[e] . . . the persons or things to be seized." The warrant alone would have been too general, see, e.g., Marcus v. Search Warrant, 367 U.S. 717 (1961), but the language of the accompanying order is specific enough to support stopping the truck and searching it for obscene materials. The order's language tracks the Supreme Court's enumeration of obscene subject matter in Miller v. California, supra. It includes a description of the sexual aspects of the magazines, noting their "patently offensive representations or descriptions of ultimate sexual acts, normal or pervert[ed], actual or simulated, and . . . lewd exhibition of the genitals." Similar language has been approved by other courts. See, e.g., In re Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir. 1981); United States v. Cangiano, 491 F.2d 906, 912-13 (2d Cir. 1974); United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404 u.S. 947 (1971). The warrant and order together satisfied the chief function of the particularity requirement -- that of limiting the discretion of the executing officers. See Marron v. United States, 275 U.S. 192, 196 (1927).

We do not believe that the order had to be physically attached to, or expressly integrated into, the warrant in order to serve this purpose. It is true, as the defendants submit, that we have not allowed the terms of a warrant be narrowed by an affidavit unless the affidavit has been attached to the warrant and is expressly incorporated into it. See United States v. Roche, 614 F.2d 6, 8 (1st Cir. 1980); United States v. Klein, 565 F.2d 183, 186 n.3 (1st Cir. 1977) (dictum); accord United States v. Hillyard, 677 F.2d 1336 (9th Cir. 1982); United States v. Womack, 509 F.2d 368, 382 (D.C. Cir. 1974), cert. denied, 422 U.S. 1022 (1975). But see, e.g., United States v. Wuagneaux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982). However, there is a critical difference between an affidavit and a magistrate's order like the present one. An affidavit is merely an evidentiary document submitted to the magistrate by an officer; as a matter of law it cannot, and as a matter of fact it almost certainly will not, limit the scope of a search unless it is formally made part of a judicial command like a warrant. An order, in contrast, is a judicial directive ex proprio vigore. Like a warrant, it instructs the officer about what he can and cannot do, and he is bound by its terms. Most important here, as Guarino's attorney specifically concede (App. 97) and as the record indicates, the FBI agents not only knew of the terms of the order but understood themselves to be bound by its specific terms. Under those circumstances it was effectively part of the warrent.

3. Failure to supply a copy to the driver. The defendants argue that the evidence should be suppressed because the agents did not comply with Fed. R. Crim P. 41(d), which requires inter alia that the executing officer "give to the person from whom . . . the property was taken a copy of the warrant." If we read this rule as requiring that the order as well as the warrant be served on the truck driver, we are left uncertain from the record before us whether or not Rule 41(d)'s terms were complied with. See Katz v. United States, 389 U.S. 347, 355 n.16 (1967). Regardless, the general rule is that the failure to serve a copy of a warrant at the time of the search does not require suppression in the absence of a showing of prejudice. See United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981); United States v. Cafero, 473 F.2d 489, 499 2d Cir. 1973), cert. denied, 417 U.S. 918 (1974); United States v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971); cf. Walter v. United States, 447 U.S. 649, 657 n.10 (1980) (plurality decision) ("The inability to serve a warrant on the owner of property does not make execution of the warrant unlawful."). See generally 3 C. Wright, Federal Practice and Procedure, § 673, at 758-60 (2d ed. 1982). And, we see no prejudice here.

Put more generally, we have previously noted that one of the purposes of a particularized warrant is to give notice to the party being searched about the lawful scope of the search. And, we have sometimes suppressed evidence where the government failed to attach to a warrant an affidavit that would have given the party subject to the search necessary information about its scope. See United States v. Roche, supra; In re Lafayette Academy, Inc., 610 F.2d 1, 5 (1st Cir. 1979). However, in keeping with Rule 41(d) precedent, when we have suppressed evidence, the failure to attach the affidavit created a genuine risk of prejudice to the defendants: Given the vagueness of the Lafayette warrant and the other circumstances there present, had the defendants there been told what sorts of business documents the agents were looking for, they might have been able to limit the search and the number of documents seized by telling the agents where to find the specific types of documents sought. Roche was a similar case in which failure to inform the defendant about the precise scope of the search warrant meant that the defendant was unable to take otherwise practical steps to limit the agents' intrusions into his affairs.

Here, in contrast, we see no sign that any of the defendants were, or could have been, prejudiced by the failure to notify the truck driver about the terms of the order, assuming such a failure occurred. It is extremely unlikely that the driver, had he read the order, would have been able to change the course of events at the garage. The agents were not making a general search of a warehouse or offices, and they seized no documents; they simply segregated piles of material for the magistrate to view. There is still less reason to believe that the truck driver could have changed the course of events during the twenty or thirty minute search of the truck in the Combat Zone. The agents at that time were not sifting through materials in the truck or deciding what to segregate or seize; they were simply deciding whether to move the truck to the FBI garage. The driver was not an obscenity "expert;" assuming the searching agents were bound by the order and acting accordingly, what difference could the drivers' knowledge of that order have made? We conclude that the defendants, at best, may have shown the type of "failure to inform" that courts in the Rule 41(d) context have consistently held does not warrant suppression. See, e.g., United States v. Marx, supra; United States v. Cafero, supra; United States v. McKenzie, supra. All of the defendants' other Rule 41(d) objections are without merit for this reaons. United States v. Burke, 517 F.2d 377 (2d Cir. 1975).

4. The magistrate's viewing. The dissent questions the efficacy, and even the legitimacy, of Magistrate Cohen's subsequent involvement in the Boston search by analogizing this case to Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). Howver, Lo-Ji, is quite different. In Lo-Ji, a New York Town Justice joined a police team that was investigating allegedly obscene material in a local "adult" bookstore. After issuing a highly general warrant, the Justice accompanied the agents on a six-hour search of the premises, sifting through films and magazines in concert with the officers. The Court ruled that the Justice's involvement could not cure the generality of the warrant, since the very act of participating in the search undermined the Justice's neutrality. 442 U.S. at 326-28.

In this case the magistrate, unlike the Town Justice in Lo-Ji, did not accompany the agents on their initial seizure of the truck. Neither did he select the magazines and films that were presented to him for a determination of obscenity.As a result, his actions avoided the principal evils identified in Lo-Ji. He was unlikely to identify his role with that of the agents, and there was no risk that he would unconsciously confuse his investigatory and adjudicatory functions because he served no investigatory function. Neither, of course, were the warrant and order here highly general -- the initial evil identified in Lo-Ji.

On balance, the magistrate's conduct more closely resembles that of the magistrate in Heller v. New York, 413 U.S. 483 (1973), who traveled to a theater to view a potentially obscene film and then issued a warrant to the officers at the site. See Lo-Ji, 442 U.S. at 328 n.6 (distinguishing Heller and stating that a "neutral and detached" magistrate does not lose his neutrality "merely because he leaves his regular office in order to make himself more readily available to law enforcement officers who may seek the issuance of warrants"). Here, travel to the garage appears to have been simply more convenient administratively then bringing the materials to the magistrate's office. Although the latter procedure would have avoided any risk of running afoul of Lo-Ji's strictures, the delay it would have entailed also might have burdened more seriously any protected material that was caught up along with the allegedly obscene items. The magistrate's conduct thus complied in all material respects with the requirements of the Fourth Amendment, and ensured that the entire procedure placed the least feasible burden on the constitutional interests of the defendants.

We find this case a stronger one for the government, in terms of the limited intrusion on constitutional interests, than United States v. Gilman, 684 F.2d 616 (9th Cir. 1982), in which the Ninth Circuit authorized police agents to seize pornographic materials in "plain view" without any warrant in order to take them immediately to a magistrate for an obscenity determination. The Gilman court distinguished United States v. Sherwin, 572 F.2d 196 (9th Cir. 1977), cert. deined, 437 U.S. 909 (1978), which had disapproved the warrantless seizure of obscene materials found in plain view during a search for other obscene items:

In Sherwin, . . . the court was concerned with the fact that a magistrate did not authorize the seizure of the unlisted magazines because a second warrant was not sought. Here the officers took samples to the magistrate for the express purpose of securing a second warrant. The preferred procedure is for the magistrate to make his decision of probable cause on the basis of direct evidence.

684 F.2d at 619 (emphasis added). In this case, the warrant and order that allowed the agents to stop the truck and look at its contents are strictly analogous to the warrant allowing the agents in Gilman to be on the premises where they observed the new material. Moreover, here, unlike Gilman, the material detained was itself the subject of a lawful warrant and order that had previously been issued, thus diminishing the likelihood of interfering with First Amendment interests.

5. In general. Throughout, the defendants argue that special attention to procedural safeguards is required when a search or seizure threatens materials potentially protected by the First Amendment. We agree.Indeed, we have looked to see not only whether the FBI complied with the myriad of rules that courts have developed in interpreting the Fourth Amendment, but also whether the FBI's procedures were reasonable in light of First Amendment rights. We conclude that the procedures used by the FBI in this search and seizure showed adequate sensitivity to First Amendment concerns. The warrant and order authorized not a full-scale search and seizure, but a short-term detention. The purpose of the search of the truck in the Combat Zone and the FBI garage was not to confiscate contraband or evidence for trial, but to obtain further review by the magistrate before any long-term seizure was undertaken. Moving the van to the FBI garage did not impose any added burdens on the defendants' First and Fourth Amendment interests, and was reasonable in light of the traffic conditions in the Combat Zone, the brief delay intailed by the move, and the desirability of moving material to a more practical site for the magistrate's review. Finally, the review conducted by Magistrate Cohen in the FBI garage was designed to prevent, and did prevent, any extended seizure of constitutionally protected materials.

We see no alternative approach that could have offered significantly greater protection to material presumptively protected by the First Amendment. To have brought the magistrate to the truck in the Combat Zone might have risked too much involvement by the magistrate in the process of the search and seizure itself. Cf. Lo-Ji Sales, Inc. v. New York, supra. To have taken some or all of the cartons to the magistrate while leaving the driver and the truck in the Combat Zone or in the garage might have meant depriving the driver or Imperial Distributors of more material, or the same material for a longer period of time. Cf. Heller v. New York, supra (prompt post-seizure adversary hearing on obscenity required); United States v. Regan, 687 F.2d 532 (1st Cir. 1982) (22-hour detention of luggage prior to obtaining warrant constituted unreasonable seizure). Here, the order and warrant did not allow an ordinary seizure; they were used only to detain the material for a few hours until the magistrate himself could see it and determine independently whether it was protected by the First Amendment. The risk of impermissibly burdening material protected by the First Amendment was unusually small, particularly because the very purpose of the detention was to obtain the independent magistrate's judgment as to obscenity that the Supreme Court has required. See Heller v. New York, supra; Marcus v. Search Warrant, supra. Only a rule tht forbids searches and seizures outright would offer more protection, and the Constitution has not been held to bar a search and seizure in the presence of probable cause, speedy review by a magistrate, and a warrant containing the detailed language present in the order here. Nothing in the Constitution limits the prosecution of hardcore pornography to retailers alone.

II

The Providence Search

A. Facts

At 2:30 p.m. on February 28, at the very time that the search of the truck in the Boston FBI garage was in progress, a federal magistrate in Providence, Rhode Island, issued a warrant authorizing a search of the Imperial Distributors warehouse. An FBI agent, Edward Kavanagh, presented the magistrate with a copy of the affidavit that agent Gilligan had presented in Boston to obtain the warrant authorizing the Boston search. Kavanagh also submitted an affidavit containing descriptions of eight additional magazines and five films that the FBI agents had just discovered while going through the truck in Boston. The Providence magistrate then issued a warrant which expressly incorporated the Gilligan and Kavanagh affidavits, which listed and briefly described the three magazines that had led the Boston magistrate to issue his warrant, and which briefly described the thirteen new magazines and films as well. The warrant authorized the Providence FBI agents to search the warehouse and to seize obscene material "including" those specified magazines and films. It also authorized the agents to seize all Imperial Distributors business records "relating to the interstate production, manufacture, distribution, purchase and dissemination of obscene materials." (The warrant is reproduced as Appendix B.)

On the basis of this warrant, the agents searched the warehouse, seizing copies of all but one of the films and magazines listed in the warrant, several other films, and cartons of business records. At trial, the government introduced "Providence" copies of the magazines and films seized in Boston, along with the "Boston" copies themselves. But, with one or two immaterial exceptions, the government did not introduce any of the business records seized. Instead, Imperial Distributors entered into a stipulation concerning the interstate scope of its distribution network, and all defendants stipulated that "at various times identified in the indictment . . . there was substantial transportation in interstate commerce of magazines, books and films for the purpose of sale and distribution." The defendants argue that the Providence search resulted in a number of Fourth Amendment violations, and that the trial stipulations are a "fruit of the poison tree." See Wong Sun v. United States, 371 U.S. 471 (1963); 3 W. LaFave, Search and Seizure § 11.4(i).

B. Law

1. Probable Cause. The defendants first argue that the Providence warrant was not issued on probable cause. With one exception, we disagree. The Gilligan affidavit, which was presented to the Providence magistrate by Kavanagh, provided a sufficiently detailed description of the original three magazines ("Turkish Delight"), "Sex Foto Fiction No. 1", and "Sex Foto Fiction No. 2") for the Providence magistrate to make a probable cause determination about their obscenity. By tracing the source of the three magazines and the ongoing nature of the distribution process, it also gave rise to probable cause the copies of the magazines could be found at the warehouse. The Gilligan affidavit's description of the scope of Imperial Distributors' transactions further gave rise to probable cause that the warehouse would contain business records relating to interstate sale and distribution of obscene materials.

The one exception concerns the description of the thirteen magazines and films found in the truck in Boston; the affidavits were insufficiently detailed for the magistrate to make an adequate obscenity determination as to those thirteen items. See generally Lee Art Films, Inc. v. Virginia, 392 U.S. 636 (1968); Stanford v. Texas, 379 U.S. 476 (1965); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Sovereign News Co. v. United States, 690 F.2d 569 (6th Cir. 1982); United States v. Middleton, 599 F.2d 1349 (5th Cir. 1979); United States v. Tupler, 564 F.2d 1294 (9th Cir. 1977). This error, however, is harmless. Although copies of twelve of these thirteen items were seized and introduced at trial, identical copies of the same films and magazines were lawfully seized in Boston, see Part I supra, and were also introduced during the trial. As a result, the admission of the "Providence" copies of these materials is harmless constitutional error, since there is no reasonable possibility that the evidence complained of contributed to the convictions. See Chapman, v. California, 386 U.S. 18, 23-24 (1967); Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963).

2. Generality. The defendants argue that the warrant did not describe the business records to be seized with sufficient particularity. They contend that the warrant gave no guidance about what constituted "obscene materials," and hence no guidance about what constituted records relating to the interstate sale and distribution of those materials. As a result, they argue, the agents were left with unbridled discretion over which records to seize.

We disagree. The warrant did not, as the defendants suggest, simply instruct the agents to seizes records relating to "obscene materials" without further elaboration. Instead, it contained a workable operating standard for obscenity by incorporating Gilligan's description of the three original magazines, as well as the more summary descriptions of the thirteen additional magazines and films found in the truck in Boston. Whether read technically or in a "common sense" manner, cf. United States v. Ventresca, 380 U.S. at 109, the warrant authorizes the agents to seize records relating to the sixteen specified films and magazines and to other items that are similarly obscene. And, what is meant by "obscene" is indicated in the incorporated attachments with more specificity than cases like Cangiano and Marti, supra, have required for the seizure of magazines or pamphlets themselves. Other courts have found similar warrants to be sufficiently particular, even without this practical working definition of "obscenity." See Sovereign News Co. v. United States, supra; United States v. Espinoza, 641 F.2d 153 (4th Cir. 1981); United States v. Torch, 609 F.2d 1088 (4th Cir. 1979), cert. denied, 446 U.S. 947 (1980); United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974); see also Commonwealth v. Mascolo, 6 Mass. App. Ct. 266, 375 N.E.2d 17 (records relating to named film), cert. denied, 439 U.S. 899 (1978).

In deciding that the warrant was sufficiently particular and precise in this regard, we place critical importance on the fact that the standard being challenged was not being used to tell the agents which books, magazines, or films to seize. In other words, the descriptions of obscene items contained in the warrant were not being used by the agents to distinguish mterial protected by the First Amendment from the material not so protected. Rather, the descriptions were being used solely to govern the seizure of business records, which "stand on a quite different constitutional footing" from First Amendment materials themselves. Standford v. Texas, 379 U.S. 476, 485 n.16 (1965).

Defendants claim that several decisions in this circuit, including United States v. Abrams, 615 F2d 541 (1st Cir. 1980); In re Lafayette Academy, Inc., supra; and United States v. Cortellesso, 601 F.2d 28 (1st Cir. 1979), cert. denied, 444 U.S. 1073 (1980), require us to hold the warrant overly general. Those decisions, however, have found warrants to be too general: (1) where the searching agents, looking through a mass of similar "seizable" and "innocent" material, cannot readily distinguish the two sorts; (2) where "innocent" material is likely therefore to be seized; and (3) where greater specificity (that would have protected the "innocent" material) was possible.In Abrams, for example, a warrant authorized the seizure of "business and billing the medical records . . . which show actual medical services performed and fraudulent services claimed to have been performed in a scheme to defraud the United States." This language provided searchers looking through masses of medical records with no guidance in determining whether a particular document showed a "fraudulent" service.Given the vast number of documents in a doctor's office, greater specificity seemed desirable, and some further indication as to how a document would be recognized as one showing a "fraudulent" service seemed feasible. Here, in contrast, by offering detailed description against which to measure any particular publication in the warehouse, the warrant, and the incorporated attachments give a sufficient guide for determining which specific records could be seized. Moreover, it is difficult to see how the warrant here could have been made meaningfully more specific. See United States v. Timpani, 665 F.2d 1, 4-5 (1st Cir. 1981). Hence, we believe cases such as Sovereign News, Espinosa, and Torch, and Abrams, are in point and govern the result.

The defendants argue that the agents seized vast numbers of records, but that fact does not show the warrant was too general. Even if the records did not relate to the sixteen enumerated publications, they may have related to other publications in the warehouse that were as obviously "hardcore" -- that is, without constitutional protection -- as several of the listed items. Or, the agents may have exceeded the warrant's authority -- a fact that by itself does not show the warrant was too broad.

3. Search beyond the warrant's scope. We might read Imperial's brief to argue as a separate ground that the seizing agents went beyond the scope of the warrant in taking Imperial documents. But, we would not set aside the stipulation for that reason. The defendants did not argue for suppression in the district court on the ground that the agents seized more Imperial records than the warrant allowed them to take. And, we cannot decide whether they entered into their "interstate commerce" stipulation on the basis of a search that might have been unlawful for reasons not presented to the district court. Had they presented these arguments there, the district court, had it accepted them, presumably would have suppressed the evidence, thereby obviating the need for the stipulation. Under these circumstances, the stipulation was not the "fruit" of this particular "poison tree."

The defendants also seem to argue that the agents exceeded the scope of the warrant in a different respect, namely by seizing business records belonging to parties other than Imperial Distributors -- specifically, records that belonged to Little Book Shops, Inc. ("Little Books"), Gemini Enterprises ("Gemini"), and Kenneth Guarino. Assuming, for the sake of argument, that the seizure of these other records was unlawful, any error was harmless.

Defendants did not argue that the seizure of the Guarino records was beyond the warrant's scope. And, for reasons just mentioned in respect to the Imperial records, that fact bars the argument here.

Little Books and Gemini, however, did present the district court with the objection currently being considered -- that the seizure of the Little Books and Gemini records went beyond the warrant's authority. (App. 703-04.) The district court declined to rule on the objection because the government had not then actually attempted to introduce any of the challenged records, but the court specifically left the Fourth Amendment question open and told the attorney -- in the presence of the other counsel -- that he could raise the objection again if and when the government did try to introduce the records. (App. 744-45.) Notwithstanding this offer from the court, all defendants entered into the stipulation without having obtained a ruling on the Fourth Amendment claim -- and, indeed, before the government tried to introduce any of Little Books", Gemini's, or Guarino's records. Thus, none of the defendants can argue that the stipulation was the product of the illegal seizure of these records, for the government never sought to introduce them. The court was never asked to consider the Guarino record claim, and it never ruled that any of these other records were admissible. If the defendants felt that the Little Books, Gemini, or Guarino record seizures were unlawful and prejudicial, they could (and should) have obtained a ruling from the district court; there was no need to enter into the stipulation until (and unless) the district court had ruled against them. In fact, the transcript clearly indicates that the defendants entered into the stipulation because of a very different concern, namely, that the voluminous records of Imperial Distributors would prejudice them by showing a wide array of "extraneous" transactions (App. 904, 907). Thus, the stipulation, if anything, was the "fruit" of the lawful Imperial search; it was not the "fruit" of the Little Books, Gemini or Guarino record seizures, whether or not those seizures were illegal. Cf. United States v. Ceccolini, 435 U.S. 268 (1978). Nor do we see any other respect in which the Providence search was both illegal and led to the stipulation.

III

The defendants' remaining claims can be decided more briefly. They first argue that the district court wrongly failed to charge the jury not to draw any unfavorable inference from their failure to testify. The defendants failed, however, to comply with Fed. R. Crim. P. 30, which states specifically:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

The rule is not a "technicality." Rather, it helps to guarantee the defendant a fair and legally proper trial; it helps the trial court to correct any errors before the verdict, obviating the need for a new trial; and it stops a defendant who knows of a likely error from allowing the judge to err, thus gaining the "insurance" of anew trial should the jury verdict be "Guilty." It is therefore not surprising that we have insisted that a defendant must state "distinctly" what his objection is; he cannot simply make a blanket objection, referring generally to all requests for instructions that were "not given," nor can he simply refer to those requests by number. United States v. Lachman, 469 F.2d 1043, 1044-45 (1st Cir. 1972), cert. denied, 411 U.S. 931 (1973); accord United States v. Bey, 667 F.2d 7, 10 (5th Cir. 1982); Maxfield v. United States, 360 F.2d 97, 99 (10th Cir.), cert. denied, 385 U.S. 830 (1966). Here, the defendants did not even reduce their sixty-four requests to designated numbers; their exception consisted of the words:

It is difficult to see how these words could have "distinctly" told the district court anything. They are plainly insufficient for Rule 30 purposes, as the cases cited above indicate.

Neither did the district court's failure to give the instruction requested amount to "plain error." See United States v. Greer, 588 F.2d 1151, 1158 (6th Cir. 1978), cert. denied, 440 U.S. 983 (1979); United States v. Williams, 521 F.2d 950 (D.C. Cir. 1975). The court instructed the jury at the outset of the case to draw no inferences from a defendant's silence. He also instructed them later as to the presumption of innocence. Moreover, some defendants feel that a noinference instruction simply calls attention to their silence, and they therefore prefer that it not be given. See Williams, 521 F.2d at 955. this is a perfect example of a case in which a defense attorney, by directing the judge's attention to a specific request for an instruction, might have made a difference in the charge given.

Prior decisions lead us to reject the defendants' other claims. The jury charge on obscenity met the standards set forth by the Supreme Court in Miller. the district court accurately quoted excerpts of that opinion to the jury. the Supreme Court did not say in Miller that material must "arouse" the average adult to be obscene; it said only that the material must appeal to a prurient interest -- that of the average adult, or of a deviant group, depending on its aim. See Miller, 413 U.S. at 33; accord Hamling v. United States, 418 U.S. 87, 128-29 (1974).

The court's decision to admit into evidence 154 magazines not specifically named in the indictment was proper. The magazines were admitted to help prove overt acts mentioned in the indictment.Since an indictment need not list all the overt acts by which the government might prove a conspiracy, see Napolitano v. United States, 340 F.2d 313 (1st Cir. 1965), the indictment a fortiori need not list the evidence that might be used to prove an overt act. Since the defendants were told about the magazines before the trial, and since the magazines were available for inspection, we see no unfair surprise, and we find no abuse of the district court's power to admit or exclude relevant evidence. See Fed. R. Evid. 403.

The district court properly denied the defendants' motion for acquittal on the conspiracy charge, a motion based on Kotteakos v. United States, 328 U.S. 750 (1946). The fact that the evidence was not sufficient to prove that other defendants had taken part in the charged conspiracy did not, in the circumstances present here, mean that these defendants were innocent of the conspiracy. See Berger v. United States, 295 U.S. 78, 81 (1935); United States v. Tramunti, 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423 U.S. 832 (1975).

The evidence was also sufficient to convict both Miguel and Osborne; the jury reasonably could find that both were well aware of the nature and contents of the obscene materials.See Hamling v. United States, 418 U.S. at 119-23. Further, the district court did not abuse its discretion in excluding other films that the defendants sought to introduce to demonstrate community standards. See id. at 125-27; United States v. Womack, 509 F.2d at 376-78. Finally, assuming arguendo that the government should not have been allowed to rebut one of the defendants' expert witnesses with its own expert, the defendants did not object when the government expert was called or when he gave his testimony. See Fed. R. Evid. 103(a)(1).

For these reasons, the convictions in Docket Nos. 81-1301, 81-1302, 81-1303, 81-1304, 81-1307, 81-1308 and 81-1309 are

Affirmed.

ALDRICH, Senior Circuit Judge (dissenting). However seriously one may view the distribution of pornographic pictures, for present purposes I consider much more serious what the court has done to the First and Fourth Amendments.

The warrant

Although the court concedes the over-generality of the warrant, its language is worth repeating because it set the style of the government's conduct. Directed against the truck, it commanded the seizure of

"a quantity of obscene materials, including books, pamphlets, magazines,newspapers, films, and prints."

This was classically conclusory language, precisely what the Court condemned in Marcus v. Search Warrant, 1961, 367 U.S. 717. It would be difficult to think of a more improper warrant, better fitting the term general warrant that the Court in Stanford v. Texas, 1965, 379 U.S. 476, at 481, likened to former writs of assistance. It is hard to understand how a magistrate could employ it under any circumstances.

The order

The court holds that the warrant was saved by the order, which, though not incorporated, or attached, was to be read with it. The court describes it as "the accompanying order;" says that the "record is silent" whether it was attached to the warrant, and that it is "left uncertain" as to whether it was served. I believe no uncertainty was left after three affirmative references, during the hearings, to the service of the warrant without any mention of an order. Even more persuasive, I note that neither the government, nor the two district judges who dealt with the motions to suppress, shared this court's uncertainty. Neither do I.

During the course of the debate that the court refers to in its opinion, I maintained that a deliberate act of serving a manifestly improper warrant without disclosing in any way the existence of an "accompanying" order was a sufficiently serious departure to invalidate the order even though the truck driver in possession -- until arrested without authority or cause -- may not have been "prejudiced." (E.g., to quote the court, he "was not an obscenity 'expert.") Now that the Court has taken certiorari in one of the cases on which I relied, Commonwealth v. Sheppard, 1982, 387 Mass. 488, 441 N.E.2d 725, cert. granted June 28, 1983, 521 L.W. 3913, I see no point in my continuing this aspect. However, although the order is less easy to fault than the warrant, I believe that even if it is fully looked to it does not advance the government's case. It, too, was too broad.Nor was it supported by probable cause.

Like the warrant, the order referred to every type of visual obscenity imaginable: "obscene materials of the same tenor as Turkish Delight, Sex Photo Fiction No. 1 and Sex Photo Fiction No. 2;" materials being defined as "including books, pamphlets, magazines, newspapers, films, and prints." As the Court stated in an obscenity case a decade ago, quoting Stanford v. Texas, 1965, 379 U.S. 476, 485,

"[T]he constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things' are books, and the basis for their seizure is the ideas which they contain." Roaden v. Kentucky, 1973, 413 U.S. 496, 504.

It is not "scrupulous exactitude" to direct police officers to "materials of the same tenor." Cf. Lo-Ji Sales, Inc. v. New York, 1979, 442 U.S. 319 ("portraying similar activities"), post. Put simply, police officers are not qualified to make judgments of obscenity. Lee Art Theatre, Inc. v. Virginia, 1968, 392 U.S. 636; Marcus v. Search Warrant, ante. This is so even though they are furnished with a general definition, in language approved by the Court.

This principle is strikingly illustrated by Lo-Ji Sales. There, armed with an investigating officer's affidavit furnishing a detailed description of the activities portrayed in two motion picture films purchased in defendant's store, accompanied by the films themselves, which the town justice viewed, the justice issued a warrant to seize further copies of the named films, and leaving the warrant open to add further films "portraying similar activities." The Court observed,

"[T]he conclusory statement of the police investigator that other similarly obscene material would be found at the store" furnished no "sufficient probable cause to pursue a search beyond looking for additional copies of the two specified films." (442 U.S. at 325)

This although the officer had awareness based upon a detailed account of the activities that the films protrayed, in language meeting an approved definition of obscenity. It was not the officer's ignorance of the standard, but his lack of ability to apply it, that made his conclusion invalid. Yet the present court not only accepts the officers' conclusions of "hard-core pornography," and "obscene as a matter of law," post, when it does not even appear what definitions they had applied, but it approves instructing them to judge not merely further magazines, but all materials of every kind.

From the standpoint of the First Amendment I find in the order no meaningful departure from the general warrant with which this case started. In effect, the officers were given carte blanche to make conclusions which the Court stated in Lo-Ji Sales they were incapable of making. The only difference was the one described by the court. "The warrant and order authorized not a full-scale search and seizure, but a short-term detention. The purpose of the search of the truck in the Combat Zone and the FBI garage was not to confiscate contraband or evidence for trial, but to obtain further review by the magistrate before any long-term seizure was undertaken."1 Assuming the correctness of this characterization, the court cites no authority for this startling principle. I am reminded of the old English case -- I forget the source -- of the servant girl who thought she should be excused for having a baby because it was such a small one.

Certainly this was a full-scale search, and surely on the court's own analysis it was a seizure. In order to escape that portion of Lo-Ji Sales that the court's opinion recognizes -- the impropriety of the magistrate's participating in the selection -- the court says that the magistrate's "travel to the garage appears to have been simply more convenient administratively than bringing the materials to the magistrate's office." Thus the procedure was the full equivalent of the officers' making the seizure and bringing it to the magistrate.2

Accordingly, a truck full of presumptive First Amendment material, of all sorts, may be stopped and detained for several hours, and the entire contents searched because it is only a "short-term detention," or "minimal" and "reasonable" interference with First Amendment rights because the officers' determinations of obscenity would be shortly reviewed by a magistrate. To me this was a "taking [that] brought to an abrupt halt an orderly and presumably legitimate distribution," Roaden v. Kentucky, 413 U.S., ante, at 504. If subsequent review by a magistrate would cure over-zealous and unqualified officers, the principle could be equally applied to the original warrant itself. Indeed, I believe this, in full substance, is what the court has done. If the officers hit it right, fine; if they don't, it was only a short detention.

If, conceivably, I am mistaken about over-broad authority given the officers, there is the further matter of probable cause. The magistrate's findings were as follows.

"On the basis of the affidavit submmitted by Special Agent Gilligan, this Court concludes that there is a pattern of delivery of magazines of the same tenor as [the magazines] Turkish Delight, Sex Photo Fiction No. 1, and Sex Photo Fiction No. 2 by Imperial Distributors and/or Kenneth F. Guarino from the State of Rhode Island. On the basis of the foregoing, this Court concludes that the one truck bearing Rhode Island Commercial license 91826 is presently in possession of obscene materials, including books, pamphlets, magazines, newspapers, films, and prints of the same tenor and description as Turkish Delight, Sex Photo Fiction No. 1, and Sex Photo Fiction No. 2."

To begin at the very beginning, even though admonished to give the affidavit a "common sense" interpretation it seems to me, where police officers whose duty it was to enforce the Commonwealth's laws dealing with obscenity had watched defendants' trucks delivering large quantities of magazines, which they were free to buy, on 14 occasions between April, 1975 and February, 1978 and had found only three that were obscene, that this fell far short of "a pattern of delivery of magazines of the same tenor." Much less should it justify the conclusion that defendants' truck was "presently in possession of obscene materials, including books, pamphlets, . . . newspapers, films, and prints of the same tenor."

With respect, the court resolves this problem by ignoring settled decisions of the Court. Gilligan's affidavit, the court says, showed that defendants' trucks delivered cartons to Combat Zone "stores that regularly sold hard-core pornography." For this description of the stores' wares, however, the affidavit furnished nothing but unexplained opinions of two Boston police officers; conclusory opinions not even supported by descriptions of what was depicted, but simply, "which are obscene as a matter of law." Interestingly enough, the officers did not even offer the opinion that the other obscene magazines were of the same tenor as the three that they produced. The court ignores that the Court has repeatedly said that a police officer's opinion as to obscenity is entitled to no weight. Lo-Ji Sales, Inc. v. New York, ante; Lee Art Theatre, Inc. v. Virginia, ante; Marcus v. Search Warrant, ante. Indeed, if anything, the officers might be thought to have furnished negative information. Although their duty was to enforce the Commonwealth's obscenity laws, they recited no instance of a complaint ever having been filed, let alone successfully prosecuted, against any of these particular stores. the mere fact that they were in the Combat Zone, described in Commonwealth v. Lotten Books, Inc., Mass App. 1981, 428 N.E.2d 145, at 147, as the "adult entertainment district of Boston," may suggest offensiveness, but it established no presumption of obscenity. We are back to the officers' unsupported opinions.

Again, the court has only the officers' personal conclusions that the peep shows "invariably displayed . . . hard-core pornography." There is no presumption as to this even in the Combat Zone. Cf. Fantasy Book Shop, Inc. v. Boston, 1 Cir. 1981, 652 F.2d 1115. If I am to exercise common sense, it would cause me to wonder how a quantity of stores, for some three years, openly provided invariably hardcore peep shows and avoided prosecution. Perhaps they did not escape, or perhaps "the fix was in," but there is nothing in the affidavit to suggest either such.

There was shown no proper basis for charging the stores with exhibiting obscene films. In addition, there was no adequate basis for charging defendants with delivering films at all. According to the affidavit, the officers "observed [defendants"] open cartons, and could see that they contained various magazines, books, and newspapers," but in 14 surveillances they never traced film to defendants.

This matter is of vital importance because both counts of the indictment rely, in part, upon the films seized, either as the substantive offense, or as one of the overt acts. Hence if the films should have been suppressed, even if, for some reason, not the magazines, it cannot be told upon which the verdicts were based, and they must fall. Brochu v. Ortho Pharmaceutical Corp., 1 Cir., 1981, 642 F.2d 652.

The court is satisfied of probable cause to expect films in the truck for four reasons: (1) defendants repeatedly made "wholesale deliveries," (2) including newspapers and books, (3) to shops that showed "sexually explicit" peep shows, (4) through the use of "film machines that Imperial drivers serviced." As to the last, one driver was seen to be "servicing" machines in one store on one occasion. On basic agency principles, particularly in light of the period of observation, I reject the conclusion of probable cause to infer that this was part of his regular employment as distinguished from a single act of helpfulness. As to the wholesale deliveries, the more the deliveries, a number of which were seen opened, the more conspicuous is the total absence of any films. Finally, the term "sexually explicit" peep shows is the court's. Whether this is a deduction from the affidavit's "hard-core pornography," and, at the same time a diminution thereof, viz., sexual, but not obscene, is not clear. In either case it furnishes no basis for charging the defendants. There was no evidence that defendants were the stores' only supplier, or that films originate from the same source as magazines.

There is not only a presumption that printed matter is protected by the First Amendment, it is logical to suppose that vendores who publicly sell questionable material will try to approach the line without crossing it. To call three transgressions in a period of nearly three years "a regular pattern of deliveries of unlawful materials" seems to me, even as to magazines, to be satisfying the First and Fourth Amendments with words. And with no films seen on 14 occasions, what was the reasonable likelihood that there would be films on the next? Whatever may be the exact meaning of the constitutional requirement of probable cause, cf. United States v. Melvin, 1 Cir., 1979, 596 F.2d 492, to find it here is to demean it.3

Conclusion

Rather than prosecute on the basis of the three magazines lawfully come by, or follow the lead of the Boston officers by buying more that was brought by defendants' truck and openly offered for sale, the government used the original magazines to stage a grandstand drama of cops and robbers. Well enough, but if it wants to play it must play by the rules. In Lo-Ji Sales a unanimous Court protected a defendant from wrong methods even though it had been shown in prior violation of the obscenity law, and even though its further material was available to the public, stating, 442 U.S., ante, at 329, that "violations of law must be dealt with within the framework of constitutional guarantees." It has been pointed out before that this is particularly vital when dealing with the First Amendment. A Quantity of Books v. Kansas, 1964, 378 U.S. 205, 211-12. See, also, United States v. Klines, 1 Cir., 1977, 565 F.2d 183, 192 n.2 (Campbell, J., dissenting). Socially unredeemed pictures today may be someone else's disapproved-of ideas tomorrow. I must dissent.

APPENDIX A

United States District Court FOR THE DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA VS. One truck bearing Rhode Island commercial license 91826

AFFIDAVIT FOR SEARCH WARRANT

BEFORE LAWRENCE P. COHEN Name of Judge1a or Federal Magistrate

Boston, MA Address of Judge1a or Federal Magistrate

The undersigned being duly sworn deposes and says:

That he has reason to believe that (on the premises known as) One truck bearing Rhode Island commercial license in the District of Massachusetts there is now being concealed certain property, namely, a quantity of obscene materials, here describe property including books, pamphlets, magazines, newspapers, films, and prints, which are evidence of a violation of Title 18, United States Code, here give alleged grouns for search and seizure2a Section 1465, said violation being the transportation in interstate commerce of obscene matter for sale and distribution.

And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:3a

I have been a Special Agent for the Federal Bureau of Iinvestigation for almost 15 years.

For the past year, I have been working closely with Bernard F. Hurley and Charles A. McManus, both of thom are detectives with the City of Boston Police Department. These two detectives had advised me that they have spent the majority of their working time for the past few years in enforcing the Commonwealth of Massachusetts' laws dealing with obscenity. Together, they have taken part in numerous arrests and prosecutions which have resulted in many convictions for violations of the Commonwealth's obscenity laws.

Hurley and McManus have advised me that they are familiar with the various stores in Boston that regularly offer pornographic materials for sale to the public. Most of these stores are located along a stretch of Washington Street in Boston in a section commonly known as the Combat Zone. In the course of their duties, Hurley and McManus have entered these stores, both within and outside the so-called Combat Zone, and have observed what is available for sale to the public. In the opinions of Hurley and McManus, the Chief business of these stores is to regularly offer for sale numerous items, including books, magazines, prints, and films, which are obscene as a matter of law.

During their police work, Hurley and McManus had made observations concerning how the aforementioned stores are supplied and stocked. Hurley has advised me that on Tuesday, April 29, 1975, during the afternoon, he observed a panel truck bearing Rhode Island commercial license plate number 18418 in the vicinity of the United Discount House Corp., located at 642-646 Washington Street in Boston. This store is known by Hurley to offer pornographic materials for sale to the public. Hurley observed a male individual take seven cartons out of the panel truck, and bring them inside the store at 646 Washington St. The same male individual soon came out with three cartons -- one carton bearing a marking "United" -- and placed the three cartons in the panel truck. Hurley advised that shortly thereafter, he ran a registration listing on R.I. commercial license 18418, and it was listed to Kenneth F. Guarino, 40 Hopkins Ave., Johnston, R.I.

Hurley advised me that on Tuesday, May 20, 1975, he observed a panel truck bearing R.I. commercial license plate number 89491 park in the vicinity of 646 Washington St., Boston, at about 2:05 P.M. He observed a male individual deliver some cartons from the truck to the store at 646 Washington St. The panel truck then proceeded to The Boylston Book Store at 10 Boylston St., Boston. The same male individual was seen to deliver ten large cartons and one small carton to this establishment. Shortly thereafter, he exited the store with two large cartons and one small white carton which he placed inthe truck. This individual then proceeded to The Book & Gift Shop located at 225 Tremont St., Boston.He took eight cartons from the truck, and delivered them into the store. Shortly thereafter, he exited the store with four cartons which he placed in the truck. Both The Boylston Book Store and The Book & Gift Shop are known by Hurley to offer pornographic materials for sale to the public. Hurley told me he ran a listing on R.I. commercial license 89491, and it was listed to Imperial Distributors, Inc., 208 Laurel Hill Ave., Providence, R.I.

Hurley advised me that on Tuesday, December 21, 1976, at about 1:10 P.M., he observed a blue van-type truck bearing R.I. commercial license palte 44457 in the Combat Zone area of Boston. A male individual was observed to deliver one carton to United Discount at 646 Washington St. and five cartons to Zone Book, Inc., at 10 Boylston St., a store known by Hurley to offer pornographic material for sale to the public.

Hurley advised me that on Tuesday, June 7, 1977, he observed a van bearing R.I. commercial Plate 44457 in the Combat Zone. A male individual was observed to make a delivery to Zone Book, Inc., at 10 Boylston St.

Hurley advised me that on Monday, October 17, 1977, he observed a vehicle bearing R.I. commercial license plate 89491 park in the vicinity of United Discount at 646 Washington St. A male individual remained in the store for about twenty minutes, and was observed servicing the peep show film machines therein. Hurley advised me that the peep show film machines are opearated by placing 25 cents in the machine, such that the film runs for a few minutes. If the customer desires to see the whole film, the customer must insert another 25 cents every few minutes. Hurley advised that he and McManus have periodically checked on the nature of the films in these peep show machines, and, in their opinion, the films have invariably displayed various types of hard-core pornography.

Hurley advised me that on Tuesday, November 1, 1977, he observed a vehicle bearing R.I. commercial plate 44457 in the Combat Zone. A male individual was observed to deliver six cartons marked "J.P." to the establishment at 694 Washington St. Hurley advises that Joe P. Enterprises, Inc., Marbel distributors, Inc., Granite Mail Order House, Inc., and United Books, Inc., are all listed at this address.Hurley advised that these firms are known to distribute pornographic material to other stores for sale to the public. For instance, Hurley advised me that Anthony Russo holds all the corporate offices in both Joe P. Enterprises, Inc., and United Books, Inc.; that Russo also owns Liberty Book Store at 4 Boylston St., Boston, which store regularly offers pornographic material for sale to the public.

Hurley advised me that on Tuesday, January 10, 1978, he observed a vehicle bearing R.I. commercial plate 91826 in the Combat Zone. A male individual was observed to exit the vehicle, and make a delivery to United Discount at 646 Washington St. Hurley advised that shortly thereafter, he and Detective McManus entered the store. On the counter in front of store employee Albert McCarthy was an invoice dated January 9, 1978 from "Imperial" to "United Discount." I ran a listing on plate 91826, and found that it was registered to Kenneth F. Guarino, 208 Laurel Hill Ave., Providence, R.I.

Hurley advised me that on Tuesday, January 17, 1978, at about 10:30 A.M., he observed a vehicle bearing R.I. commercial plate 91826 to park inthe vicinity of the Eros Theatre at 673 Washington St. A male individual was observed to exit the vehicle, and deliver one box to the 200 Book Club, Inc., at 696 Washington St.Hurley advised me that this establishment regularly offers pornographic material for sale to the public.

The male individual was then observed to deliver nine cartons to United Discount at 646 Washington St. the same individual was then seen to deliver twelve cartons to Boylston Book Store at 10 Boylston St. He exited this store with three cartons. He was next observed to walk back to the Eros Theatre, and enter said theatre while holding a piece of paper in his hand.This male individual appeared to be about 5'9", white, short beard, dark hair, 25 to 30 years old, balding on the back of his head, wearing a fur-lined brown jacket.

At about 2:00 P.M., Detectives Hurley and McManus entered United Discount at 646 Washington St. Store employees Albert McCarthy and Robert Murray were observed to be putting magazines into transparent plastic covers, and sealing said covers. Cartons marked "United Discount" were open, and McCarthy and Murray were sealing magazines taken from these cartons. Hurley and McManus both observed the open cartons, and could see that they contained various magazines, books and newspapers. Among the items that McCarthy was seen to seal was a magazine entitled "Turkish Delight." The front cover of the magazine depicted a male and female engaging in cunnilingus, while the back cover showed a male and female engaging in intercourse. On the counter close to where McCarthy was sealing publications, an invoice marked "Imperial" was observed.

On Tuesday, January 24, 1978, at about 11:34 A.M., I observed a blue Ford van truck bearing R.I. commercial plate 91826 parked in front of the Eros Theatre at 673 Washington St., Boston. I entered an "adult book store" at 673B Washington St., and observed four cartons piled on the floor next to a store employee. Within a couple of minutes, a white male weighing about 250 pounds appeared and presented a check to another white male who was about 6'0", 26 to 28 years old, 165 pounds, black hair with a thin black beard. This latter white male left the premises after receiving the aforementioned check. I observed the blue Ford van driven diagonally across the street to 646 Washington St., and the white male who had received the aforementioned check was observed to deliver three cartons at 646 Washington St. Fellow F.B.I. Agent Daniel J. Quigley then observed the same white male deliver four cartons to 12-14 Boylston St., Boston.

On Thursday, January 26, 1978, I went to the United Discount store at 646 Washington St., Boston. Offered for sale at this time were numerous magazines in sealed transparent plastic envelopes, including a magazine entitled "Turkish Delight." I purchased one copy of "Turkish Delight" for $6.00. I have reviewed the contents of this magazine. On the front cover a male and female are shown engaging in cunnilingus; on the back, a male and female are engaging in intercourse. The remainder of the magazine displays numerous acts of fellatio, cunnilingus and intercourse with the camera angle emphasizing the genitalia as much as possible.

Fellow F.B.I. Agents Philip Reilly and Edward Kavanagh advised me that on Tuesday, January 31, 1978, they were on surveillance in the vicinity of Imperial Distributors, Inc., at 208 Laurel Hill Ave., Providence, R.I. At about 9:20 A.M., they observed a van-type truck bearing commercial R.I. plate 44457 being loaded with cartons from the loading dock area of Imperial Distributors, Inc. This truck was observed leaving 208 Laurel Hill Ave. at about 9:38 A.M. Reilly and Kavanaugh followed the truck across the state line into Massachusetts, and up into Boston. At about 10:56 A.M., I observed a blue van bearing R.I. commercial license 44457 turn into Washington St., Boston, from Kneeland St. It parked in front of 694 Washington St. The driver was observed to bring three or four cartons into 694 Washington St. The van then was driven to 673 Washington St. Three cartons were delivered to 673B Wasington St. I then entered 673B Washington St., and observed a male clerk behind the counter conversing on the telephone. I heard the clerk say, "I have a C.O.D. from Imperial Distributors."

The driver of the R.I. van was next observed to deliver one carton to a book store on LaGrange Street. He then drove to 646 Washington St., where he delivered four cartons. I then entered United Discount at 646 Washington St. I observed that Boston Police Detectives Hurley and McManus were already within the store. McManus showed me the cartons which the R.I. driver just delivered. The Cartons were piled up on the floor near the attendant's counter in the rear of the store. A store clerk was observed removing magazines from one of the cartons, and he was seen counting the magazines. I observed the titles on top of two of the magazines that the clerk was counting. The titles were "Sex Foto Fiction No. 1" and "Sex Foto Fiction No. 2."

Fellow F.B.I. Agent James A. Yacobucci advised me that on February 2, 1978, at about 10:30 A.M., he went to United Discount at 646 Washington St., Boston, and at the rear of the store on a magazine rack he saw displayed magazines entitled "Sex Foto Fiction No. 1" and "Sex Foto Fiction No. 2." He purchased the two magazines for $6.00 each. Yacobucci turned the magazines over to me. I have reviewed both magazines. They both display numerous acts of fellatio, cunnilingus and intercourse with the camera emphasizing the genitalia as much as possible.

Detective Hurley advised me that on Tuesday, February 14, 1978, he observed a truck bearing R.I. commercial plate 91826 parked at 681 Washington St., Boston, about 1:00 P.M. Thereafter, Hurley observed a white male take seven cartons from the truck, and deliver them to 646 Washington St. The white male then made three delivery exited 10 Boylston St. with five cartons.

Fellow Agent Philip Reilly advised me that on Tuesday, February 21, 1978, he was on surveillance duty at 208 Laurel Hill Ave., Providence, R.I. He stated that he observed a truck bearing R.I. commercial plate 91826 loaded with about 35 or 40 cartons from the loading dock area of Imperial Distributors, Inc. The truck departed at about 9:35 A.M. Reilly followed the truck over the state line into Massachusetts. At about 11:00 A.M., I observed a truck bearing R.I. commercial plate 91826 turn into Washington St., Boston. A white male driver was observed to deliver nine cartons at 673B Washington St., ten cartons at 646 Washington St., thirteen cartons at 10 Boylston St., and two cartons at 18 LaGrange St., all of Boston.

Fellow F.B.I. Agent Edward Kavanagh advised me that today at 8:18 a.m., he was on surveillance at Imperial Distributors, Inc., 208 Laurel Hill Ave., Providence, R.I. He observed a truck bearing R.I. commercial plate 91826 being loaded with cartons at the Imperial Distributors loading dock. The truck left Imperial Distributors at about 9:32 a.m. The truck was observed to cross the state line into Massachusetts. For the foregoing reasons, I believe that a truck bearing R.I. commercial plate 91826 contains obscene, lewd, lascivious, and filthy books, magazines,newspapers, prints, and other matter of an indecent and immoral character, and that said truck has transported said materials in interstate commerce for the purpose of sale and distribution; all in violation of Title 18, United States Code, Section 1465.

United States District Court FOR THE

Magistrate's Docket No. 78-0020 m-00

UNITED STATES OF AMERICA vs. Imperial Distributors, Inc. 208 Laurel Hill Avenue Providence, Rhode Island

AFFIDAVIT FOR SEARCH WARRANT

BEFORE Honorable Jacob Hagopian, Room 412, Federal Building and U.S. Courthouse, Providence, Rhode Island

The undersigned being duly sworn deposes and says:

That he (has reason to believe) (is positive)1b

that (on the person of) (on the premises known as)

Imperial Distributors, Inc., 208 Laurel Hill Avenue, Providence, Rhode Island, more fully described as a business including a one-story green cinder block warehouse and a detached green wooden garage with bays.

in the District of Rhode Island there is now being concealed certain property, namely

all business records of Imperial Distributors, Inc., relating to the interstate production, manufacture, distribution, purchase and dissemination of obscene materials, dating from April 29, 1975, to the present, including, but not limited to: all books, records, general legers, cash disbursement books, cash receipt books,

which are

evidence of the commission of a criminal offense and designed and intended for use and has been used as a means of committing a criminal offense, to wit: the interstate transportation of obscene materials for sale and distribution, 18, USC 1465.

And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

I have been a special Agent for the Federal Bureau of Investigation for 22 years and am presently assigned to the Boston Field Office, Providence, Rhode Island Resident Agency.

For approximately the past month, I have been participating in an investigation of Interstate Transporttation of Obscene Materials in conjunction with other Special Agents of the Federal Bureau of Investigation, including Lawrence Gilligan, Special Agent, Boston Field Office, and other law enforcement agencies.

Attached and incorporated by reference herein is a facsimile of an affidavit executed by cancelled checks, bank statements and deposit slips, payroll records, tax returns, correspondence files, account receivable ledgers, bills of lading, rubber stamps, signature facsimiles, and other records showing ownership of said business and identification of employees, and furthermore, there is being concealed a quantity of obscene materials, including

Magazines:

1. Sex Foto Fiction No. 1

2. Sex Foto Fiction No. 2

3. Turkish Delight

4. Tramp, price $12.50

5. Mistress, price $12.50, #1

6. Semen, price $10, $6 sticker attached, #1

7. Stroke, price $10, #1

8. Private, Issue 13, price $10, all new $9. Swedish Erotica #10, price $12.50

10. Private, Issue 12, all new, price $10

11. Funk #1, price $10

Films:

1. Candlelite Collection, second edition, caption "Blonde Bombshell", Film #9.

2. Candelite Collection, Second Edition, title "Oriental Delight", Film #8.

3.Club Series, title "The Ass't Editor" C-23.

4. Club Series, title "Carol's Extra Bonus" C-28.

5. Candlelite Collection, Second Edition, title "Soul Slave", Film #10.

(All further described below and incorporated by reference here)

Special Agent Gilligan on this date in support of an application for a search warrant for a truck bearing Rhode Idland Commercial Plate 91826 in the District of Massachusetts.

As noted in the attached affidavit of Special Agent Gilligan, on this date, I observed the truck bearing Rhode Island Commercial Plate 91826 being loaded with cartons at the Imperial Distributors loading dock.On several occasions within the past month, either myself or Special Agent Pilip G. Reilly, Federal Bureau of Investigation, have observed that truck and others being loaded with cartons on Tuesday mornings at Imperial Distributors. Surveillance units have followed these trucks as they made deliveries to pornographic stores in the area of Boston commonly known as the "Combat Zone".

Special Agent Reilly and I have observed the premises of Imperial Distributors, Inc. to include a one-story green cinder block warehouse. The cartons placed in the truck with Rhode Island Commercial Plate 91826 were taken from the warehouse today and on the previous days surveillance was conducted at the location. The business also includes a green wooden garage with several bays. Special Agent Reilly and I have observed cartons being taken from that location and placed on trucks also. Also as noted in Special Agent Gilligan's affidavit, three particular magazines have been transported from Imperial Distributors to Boston's Combat Zone. These magazines are: Sex Foto Fiction NO. 1; Sex Foto Fiction No. 2; and Turkish Delight.

Special Agent Gilligan, Boston Field Office, has advised me that the truck with Rhode Island Commercial Plate 91826 was searched pursuant to a warrant on this date while in Boston, Massachusetts. Special Agent Gilligan has advised that included, among other items, in the truck were the following:

Magazines:

1. Tramp, price $12.50

Front Cover: Female performing fellatio on male.

Back Cover: Male, female sexual intercourse.

2. Mistress, price $12.50, #1

Front Cover: Male, female sexual intercourse.

Back Cover: Male performing cunnilingus on female.

3. Semen, price $10, $6 sticker attached, #1

Front Cover: Female licking male penis

Back Cover: Two females on male body, one female holding and licking penis.

4. Stroke, price $10, #1

Front Cover: Female holding male penis.

Back Cover: Negro female performing fellatio on male, white female licking same male's penis.

5. Private, Issue 13, price $10, all new

Front Cover: Female licking male abdomen while holding erect penis in hand.

Back Cover: Female performing fellatio on male.

6.Swedish Erotica #10, Price $12.50

Front Cover: Female performing fellatic on nude male, same male placing his finger in female genitalia.

Back Cover: Same as front.

7. Private, Issue 12, all new, price $10

Front cover: Female performing fellatio on two males.

Back Cover: Female on top of male, sexual intercourse, with face of third male attempting to lick buttocks.

8. Funk #1, price $10

Front Cover: Male performing cunnilingus on female.

Back Cover: Male performing intercourse on female while holding female breasts.

Films:

1. Candletite Collection, second edition, caption "Blonde Bombshell", Film #9,/price $75 in USA, regular 8mm. Raw stock reveals printing which reads "Panel 1 cand #9 Header 201".

First scene depicts female with hand on male's penis.Further scene depicts two hands on vagina. Further scene depicts female performing fellatio on male.

2. Candlelite Collection, Second Edition, title "Oriental Delight", Film #8,/price $75 in USA, regular 8mm. Raw stock reveals following printing, "Panel 4 Candle 8 Head 202". Scene depicts nude female with hand in vagina, with nude male standing over her. Further scene of close up of hand in vagina. Further scene depicts female committing fellatio on male.

3. Club Series, title "The Ass't Editor" C-23,/ Super 8mm, no price indicated. Raw stock reveals following printing thereon, "Start C.P. 23". Scenes depicted thereon of nude female performing fellatio on nude male. Further scenes depict close up of female's vagina. Further scenes depict hand in vaginal area and hand on male's penis which is now located near female's mouth. Fellatio depicted therein.

4. Club Series, title "Carol's Extra Bonus" C-28,/ Super 8mm. Raw stock reads as follows: "Start C.P. 22". Scenes depicted thereon show negro female nude; female with hand on male's penis. Penis near female's mouth. Further scenes depict female's hand on penis. Further scene depicts penis in female's mouth.Further scenes depict close up of fellatio.

5. Candlelite Collection, Second Edition, title "Soul Slave", Film #10, price $75 in USA, 8mm. Raw stock reads "10 Head 201 #10 Candlelite R. Masthead". Review of film depicts negro male and white female on a bed. Further scene depicts white female performing fellatio on negro male. Further scene depicts white female placing negro male's penis in the near proximity of her breast.

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA v. ONE TRUCK BEARING RHODE ISLAND COMMERCIAL LICENSE 91826

Order

February 28, 1978

COHEN, U.S.M.

Upon review of the affidavit submitted by Special Agent Lawrence Gilligan, this Court has reviewed the magazines Turkish Delight referred to by Special Agent Gilligan, as well as the magazines Sex Photo Fiction No. 1 and Sex Photo Fiction No. 2, also referred to by Special Agent Gilligan. Upon review of those three magazines, this Court concludes that the average person, applying contemporary community standards, would find the magazines taken as a whole, appeal to the prurient interest; that those magazines depict or describe, in a patently offensive way sexual conduct specifically defined by applicable law; and that the magazines, taken as a whole, lack serious literary, artistic, political, or scientific value. In particular, this Court finds that those magazines depict patently offensive representations or descriptions of ultimate sexual acts, normal or pervert, actual or simulated, and that the magazines further depict lewd exhibition of the genitals.

Moreover, on the basis of the affidavit submitted by Special Agent Gilligan, this Court concludes that there is a pattern of delivery of magazines of the same tenor as Turkish Delight, Sex Photo Fiction No. 1, and Sex Photo Fiction No. 2 by Imperial. Distributors and/or Kenneth F. Guarino from the State of Rhode Island. On the basis of the foregoing, this Court concludes that the one truck bearing Rhode Island commercial license 91826 is presently in possession of obscene materials, including books, pamphlets, magazines, newspapers, films, and prints of the same tenor and description as Turkish Delight, Sex Photo Fiction No. 1, and Sex Photo Fiction No. 2.

On the basis of the foregoing, Special Agent Lawrence Gilligan of the Federal Bureau of Investigation, and other officers authorized by law, are hereby commanded to search that one truck bearing Rhode Island commercial license 91826 in order to determine whether or not there exists therein obscene materials of the same tenor as Turkish Delight, Sex Photo Fiction No. 1 and Sex Photo Fiction No. 2."

United States District Court FOR THE DISTRICT OF MASSACHUSETTS

Docket No.

UNITED STATES OF AMERICA vs. One truck bearing Rhode Island commercial license 91826

SEARCH WARRANT

To any authorized person:

(Affidavits) having been made before me by Lawrence Gilligan, Special Agent, Federal Bureau of Investigation, that he has reason to believe on the premises known as on truck bearing Rhode Island Commercial license 91826,

in the District of Massachusetts,

there is now being concealed certain property, namely, a quantity of obscene materials, including books, pamphlets, magazines, newspapers, films, and prints,

and as I am satisfied that there is probable cause to believe that the property so described is being concealed onthe person or premises above described and that grounds for application for issuance of the search warrant exist as stated in the supporting (affidavits).

You are hereby commanded to search within a period of 10 days (not to exceed 10 days) the person or place named for the property specified, serving this warrant and making the search in the daytime (6:00 a.m. to 10:00 p.m. and if the property is found there to seize it, leaving a copy of this warrant and receipt for the property taken, and prepare a written inventory of the property seized and promptly return this warrant and bring the property before Lawrence P. Cohen as required by law.

Dated this 28th day of February, 1978

RETURN

I received the attached search warrant February 28, 1978, and have executed it as follows:

On February 28, 1978 at 11:45 o'clock A.M. I searched premises described in the warrant and

I left a copy of the warrant with Edward Miguel together with a receipt for the items seized.

The following is an inventory of property taken pursuant to the warrant:

None taken at this time.

This inventory was made in the presence of

and

I swear that this Inventory is a true and detailed account of all the property taken by me on the warrant.

APPENDIX B

United States District Court FOR THE

UNITED STATES OF AMERICA vs. Imperial Distributors, Inc. 208 Laurel Hill Avenue Providence, Rhode Island

Docket No. 78-0020-m-00

SEARCH WARRANT

To Any Authorized Agent

Affidavit having been made before me by Edward Kavanagh, Special Agent, Federal Bureau of Investigation

that he has reasons to believe that on the premises known as Imperial Distributors Inc., 208 Laurel Hill Avenue, Providence, Rhode Island, more fully described as a business including a one-story green cinder block warehouse and a detached green wooden garage with bays.

in the District of Rhode Island

there is now being concealed certain property, namely

all business records of Imperial Distributors, Inc., relating to the interstate production, manufacture, distribution, purchase and dissemination of obscene materials, dating from April 29, 1975, to the present, including but not limited to: all books, records, general legers, cash disbursement books, cash receipt books, cancelled checks, bank statements and deposit slips, payroll records, tax returns, correspondence files, account receivable ledgers, bills of lading, rubber stamps, signature

(See attached page 2)

and as I am satisfied that there is probable cause to believe that the property so described is being concealed onthe person or premises above described and that grounds for application for issuance of the search warrant exist as stated in the supporting (affidavits).

You are hereby commanded to search within a period of five (5) days (not to exceed 10 days) the person or place named for the property specified, serving this warrant and making the search in the daytime*fn* (6:00 a.m. to 10:00 p.m.) and if the property be found here to seize it, leaving a copy of this warrant return this warrant and bring the property before Hon. Jacob Hagopian as required by law.

RETURN

I received the attached search warrant Feb. 28, 1978, and have executed it as follows:

On Feb. 28, 1978, at 3:17 o'clock P.M. I searched the premises described in the warrant and

I left a copy of the warrant with Kenneth Guarino together with a receipt for the items seized.

The following is an inventory of property taken pursuant to the warrant:

See attached

This inventory was made in the presence of Kevin Slery, Philip Reilly, etal as listed in inventory and Edward M. Kavanagh

I swear that this Inventory is a true and detailed account of all the property taken by me on the warrant.

facsimiles, and other records showing ownership of said business and identification of employees, and furthermore, there is being concealed a quantity of obscene materials, including:

Magazines:

1. Sex Foto Fiction No. 1

2. Sex Foto Fiction No 2

3. Turkish Delight

4. Tramp, price $12.50

5. Mistress, price $12.50, #1

6. Semen, price $10, $6 sticker attached, #1

7. Stroke, price $10, #1

8. Private, Issue 13, price $10, al new

9. Swedish Erotica #10, price $12.50 $10. Private, Issue 12, all new, price $10

11. Funk #1, price $10

Films:

1. Candlelite Collection, second edition, caption "Blonde Bombshell," film #9.

2. Candlelite Collection, Second Edition, title "Oriental Delight", Film #8.

3. Club Series, title "The Ass't Editor" C-23.

4. Club Series, title "Carol's Extra Bonus" C-28.

5. Candlelite Collection, Second Edition, title "Soul Slave", Film #10.

(All more particularly described in the affidavit of Edward Kavanagh and attachment thereto, incorporated by reference herein).

Special Agent Gilligan on this data in support of an application for a search warrant for a truck bearing Rhode Island Commercial Plate 91825 in the District of Massachusetts.

As noted in the attached affidavit of Special Agent Gilligan, on this date, I observed the truck bearing Rhode Island Commercial Plate 91825 being loaded with cartons at the Imperial Distributors loading dock. On several occasions within the past month, either myself or Special Agent Philip G. Reilly, Federal Bureau of Investigation, have observed that treuck and others being loaded with cartons on Tuesday mornings at Imperial Distributors. Surveillance units have followed these trucks as they made deliveries to pornographic stores in the area of Boston commonly known as the "Combat Zone".

Special Agent Reilly and I have observed the premises of Imperial Distributors, Inc. to include a one-story green cinder block warehouse.The cartons placed in the truck with Rhode Island Commercial Plate 91826 were taken from the warehouse today and on the previous days surveillance was conducted at that location.the business also includes a green wooden garage with several bays. Special Agent Reilly and I have observed cartons being taken from that location and placed on trucks also. Also as noted in Special Agent Gilligan's affidavit, three particular magazines have been transported from Imperial Distributors to Boston's Combat Zone. These magazines are: Sex Foto Fiction No. 1; Sex Foto Fiction No. 2; and Turkish Delight.

Special Agent Gilligan, Boston Field Office, has advised me that the truck with Rhode Island Commercial Plate 91826 was searched pursuant to a warrant on this date while in Boston, Massachusetts. Special Agent Gilligan has advised that included, among other items, in the truck were the following:

Magazines:

1. Tramp. price. $12.50

Front Cover: Female performing fellatio on male.

Back Cover: Male, female sexual intercourse.

2. Mistress, price $12.50, #1

Front Cover: Male, female sexual intercourse.

Back Cover: Male performing cunnilingus on female.

3.Semen, price $10, $6 sticker attached, #1

Front Cover: Female licking male penis

Back Cover: Two females on male body, one female holding and licking penis.

4. Stroke, price $10, #1

Front Cover: Female holding male penis.

Back Cover: Negro female performing fellatio on male, while female licking same male's penis.

5. Private, Issue 13, price $10, all new

Front Cover: Female licking male abdomen while holding erect penis in hand.

Back Cover: Female performing fellatio on male.

6. Swedish Erotica #10, Price $12.50

Front Cover: Female performing fellatio on nude male, same male placing his finger in female genitalia.

Back Cover: Same as front.

7. Private, Issue 12, all new, price $10

Front Cover: Female performing fellatio on two males.

Back Cover: Female on top of male, sexual intercourse, with face of third male attempting to lick buttocks.

8. Funk #1, price $10

Front Cover: Male performing cunnilingus on female.

Back Cover: Male performing intercourse on female while holding female breasts.

Films:

1. Candlelite Collection, second edition, caption "Blonde Bomshell", Film #9, price $75 in USA, regular 8mm. Raw stock revelas printing which reads "Panel 1 cand #9 Header 201".

First scene depicts female with hand on male's penis. Further scene depicts two hands on vagina. Further scene depicts female performing fellatio on male.

2. Candlelite Collection, Second Edition, title "Oriental Delight", Film #8, price $75 in USA, regular 8mm. Raw stock reveals following printing, "Panel 4 Candle 8 Head 202".

Scene depicts nude female with hand in vagina, with nude male standing over her. Further scened of close up of hand in vagina. Further scene depicts female committing fellatio on male.

3. Club Series, title "the Ass't Editor" C-23,/ Super 8mm, no price indicated. Raw stock reveals following printing thereon, "Start C.P. 23". Scenes depicted thereon of nude female performing fellatio on nude male.Further scenes depict close up of female's vagina. Further scenes depict hand in vaginal area and hand on male's penis which is now located near female's mouth. Fellatio depicted herein.

4. Club Series, title "Carol's Extra Bonus" C-28,/ Super 8mm. Raw stock roads as follows: "Start C.P. 22". Scenes depicted thereon show negro female nude; female with hand on male's penis. Penis near female's mouth. Further scenes depict female's hand on penis. Further scene depicts penis in female's mouth. Further scenes depict close up of fellatio.

5. Candlelite Collection, Second Edition, title "Soul Slave", Film #10, price $75 in USA, 8mm. Raw stock reads "10 Head 201 $10 Candelite R. Masthead". Review of film depicts negro male and white female on a bed. Further scene depicts white female performing fellatio on negro male. Further scene depicts white female placing negro male's penis in the near proximity of her breast.

1. Note, however, what the court says in justification of the Providence seizure. In addition to the original Boston (Gilligan) affidavit, "FBI agent . . . Kavanaugh also submitted an affidavit containing descriptions of eight additional magazines and five films that the FBI agents had just discovered while going through the truck in Boston. . . ." Thus we have a Boston "detention" used to obtain evidence, prior to the Boston magistrate's "further review," justifying a Rhode Island entry, and a seizure of what was thereafter broadly used as "evidence for trial." To me this was piling one injury on another.

2. I will not pause to question the correctness of the court's conclusion that would avoid bringing Lo-Ji Sales, into play, that the officers, rather than the magistrate, made the final selection, but I note that the administrative convenience, on the court's assumption, was to avoid having to bring to the magistrate nine 8 1/2 by 11 inch magazines, whose combined thickness was one inch, and five 6" x 7" boxes of films whose total thickness was three inches; all easily transportable in the smallest briefcase. For me administrative convenience was the magistrate viewed a larger quantity of materials picked out by the officers and made the final selection himself. This would be Lo-Ji Sales, and the case would be over, but for present purposes I accept the court's contrary conclusion.

3. It is perhaps worth a footnote to observe that the government can hardly sweep in the films under the "plain view" exception. While I would seriously question whether officers are ever qualified to make First Amendment determinations on a "plain view," certainly in the case at bar discovery of the films (which included opening the boxes) was not a plain view inadvertency. Coolidge v. New Hampshire, (1971) 403 U.S. 443. 1a United States Judge or Judge of a State Court of Record. 2a If a search is to be authorized "at any time in the day or night" pursuant to Rule 41(c), show reasonable cause therefor. 3a If the warrant is to authorize execution pursuant to 21 U.S.C. § 879 without prior notice of authority or purpose, indicate the circumstances creating the need for such a warrant. 1b The Federal rules of Crriminal Procedure provides: "the warrant whall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time." (Rule 41C)

* The Federal rules of Criminal Procedure provide: "the warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes in execution at times other than daytime." (Rule 41(c). A statement of grounds for reasonable cause should be made in the (affidavits) if a search is to be authorized "at any time day or night" pursuant to Rule 41(c).