Walter v. United States

PETITIONER:William Walter
RESPONDENT:United States
LOCATION:Atlanta, Georgia

DOCKET NO.: 79-67
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 447 US 649 (1980)
ARGUED: Feb 26, 1980
DECIDED: Jun 20, 1980
GRANTED: Oct 15, 1979

ADVOCATES:
Elliott Schulder – for respondent in both cases
Glenn Zell – for petitioners Arthur Randall Sanders, and others
W. Michael Maylock – for petitioner William Walter

Facts of the case

On September 25, 1975, 12 packages containing 871 boxes of films depicting homosexual activities were shipped from St. Petersburg, Florida, to Atlanta, Georgia. Though addressed to Leggs, Inc., the boxes were mistakenly delivered to the address of L’Eggs Products, Inc. Employees of L’Eggs Products opened the boxes and found the boxes of films, which contained suggestive drawings on one side and descriptions on the other. One of the employees opened one of the boxes of films and unsuccessfully attempted to view portions of the film. The FBI became involved on October 1, 1975 and, without making any effort to obtain a warrant, projected and viewed the films.

On April 6, 1977, William Walter, Arthur Randall Sanders, Jr., and Gulf Coast News Agency, Inc. were indicted on obscenity charges relating to the interstate transportation of the boxes of films. Petitioners filed a motion to suppress use of the films as evidence. The motion was denied, and the petitioners were convicted. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Is the warrantless projection of films a violation of the Fourth Amendment?

Warren E. Burger:

We’ll hear arguments first this morning in Walter against the United States and the consolidated case Sanders against the United States.

Mr. Zell, you may proceed whenever you’re ready.

Glenn Zell:

Mr. Chief Justice, may it please the Court.

This is certiorari from the Fifth Circuit Court of Appeals involving a conviction of two — the two petitioners and two corporations for distribution of obscene materials in interstate commerce.

The issues that I will argue this morning involve search and seizure.

To outline the facts very quickly, the FBI was called to L’Eggs Company, it’s a stocking manufacturer.

They’d received several boxes of films misdirected to them by Greyhound Bus terminal.

Upon opening the boxes by the L’Eggs Company, they discovered they were not stockings, but films, 871 and 25 different specific kinds of films.

They called the FBI.

The FBI came out.

Mr. Mandyk I think his name is, told them to hold it for him, came back in five days and seized the entire shipment, took it to the FBI office.

Thereafter, two months later, he viewed them in the office.

Approximately two years from the initial seizure, the petitioners went to trial.

No notification either by publication or directly, was given the petitioners, no warrant was ever gotten.

And of course, during the trial, the District Court overruled the motion to suppress based on several grounds.

The conviction — the jury found the films obscene, found that petitioner is guilty, appealed to the Fifth Circuit.

There was a strong dissent by Judge Wisdom, which laid out our issues very clearly and succinctly and thereafter, we filed a certiorari to this Court.

Warren E. Burger:

When did the — did your clients first to learn what the FBI had taken possession of the films?

Glenn Zell:

Well, Your Honor, in the transcript, it appears that there was some information conveyed by one of the employees, Mr. Grassi to Mr. Sanders about a month or several days or several weeks after the initial seizure or after the FBI seized them.

Just in hearsay, and he said they heard or that was turned over to the FBI, but they weren’t sure, there’s no date in the record, and it was not verified or didn’t know where to go, what to do and he turned over to his lawyer, which, of course, was me, at that time.

Warren E. Burger:

Did your client ask for the return of the films?

Glenn Zell:

No, he did not.

We didn’t know where they were.

Mr. — Mr. Walter testified, he didn’t know where they were himself, he wasn’t sure, he was never directly told.

(Inaudible) was just told in hearsay that the FBI might have had them.

He — we never heard anything from the FBI until, of course, the indictment.

When the grand jury met, we were notified, and at that time, of course, we filled a motion to return the property.

Harry A. Blackmun:

I think that there is no issue as to the obscenity — the obscene character of some of the films.

Glenn Zell:

Well, I can see it as a — a trial attorney that it’s a factual disposition to the jury.

We litigated the case.

Glenn Zell:

We presented several expert witnesses, and the jury after being out over a day, found against us on that issue apparently.

So, we did not raise the issue of obscenity in this case, not that we concede or agree with the jury verdict, but we argued it, we fought it, it was a factual determination, and I think that’s — that — that rest that issue, I think, in this particular case, as far as it goes.

William H. Rehnquist:

Your client’s shipment was — was (Inaudible) type of thing.

Wasn’t either a — not the client’s real name as sender and not the — the consignee was not a real person?

Glenn Zell:

That’s correct.

On the box it said, “We’ll call.”

And there was a clear — and they hold it at the Greyhound terminal.

The reason for this is not that they were giving up their right of privacy as the Fifth Circuit alleged or argued, and the District Court found was that they — in the testimony in the record from Walters and Sanders, that they had repeated shipments being stolen and missing.

Apparently, whenever a — the Greyhound Bus terminal men sees the name of the sender or gets used to it, where it’s going at a certain terminal warehouse, apparently, he’s broken into and the — and the shipment is taken or parts are taken out of it.

It might point out in U.S. versus Kelly, it was the same problem.

I think his last seven shipments had been missing or misdirected.

Apparently, the workers-employees at these common carriers get used to what the shipments are about, and I guess it’s — they’ve decided just pilfer for them.

So because of that problem, we didn’t put the name of the sender or the — who would pick it up the name because we felt the employees would find out about at the common carrier.

And that’s been done as — on a regular basis.

It had been done before with no problem.

Many people travel.

Movie stars under assumed names, not that they give it the right of privacy, because they want privacy.

And that’s the reason why it was done.

William H. Rehnquist:

Well, not many travel under the name L’Eggs.

Glenn Zell:

No.

No, that happened to be the nickname of the girl who was the manager of the warehouse in Atlanta where the shipment was destined for.

She’s very tall girl, and that’s where the nickname came from.

[Laughter]

Harry A. Blackmun:

You — you used the — the word “seized” several times —

Glenn Zell:

Yes.

Harry A. Blackmun:

— in your statement of facts.

Glenn Zell:

Yes.

Harry A. Blackmun:

Do I correctly have the impression that the outfit to whom — the hosiery manufacturer to whom the delivery was made and they want her to get rid of the stuff?

Glenn Zell:

That’s correct.

Harry A. Blackmun:

And you equate that with the seizure by the FBI?

Glenn Zell:

For this reason.

Apparently, the Fifth Circuit and this Court ruled in the Burdeau case versus McDowell about a third party.

That’s true in contraband cases, involving marijuana, sawed-off shotguns.

But here, you have presumptively protected materials, reels of film that never been termed to be obscene.

They’re perfectly legal at that point.

Now, the L’Eggs Company decides that they’re not in that business, it’s not theirs.

They don’t have authority to consent to give it anyone.

They should return to the common carrier, they’re perfectly legal materials, they’re not contraband, because third party consent equates with plain view.

It’s contraband, you see it and you take it, whether it be drugs or stolen goods or sawed-off shotgun, but here you have films.

So, the FBI had no right to take it, in order to seize it.

They would steal the property of the sender.

And all they could have done and should have done was when they saw the films and looked at the boxes, is they went to a magistrate to get a warrant to seize these films.

Warren E. Burger:

Now, when do you say they were the property of the sender, why not the property of the consignee the recipient?

Glenn Zell:

That’s correct.

Warren E. Burger:

(Voice Overlap) well —

Glenn Zell:

I would agree with that also.

Either way, they certainly weren’t the property of L’Eggs Company and L’Eggs Company didn’t even have the authority to give it to the FBI.

That was perfectly legal property such as other magazines, National Geographic or Carnal Knowledge, print of Carnal Knowledge.

It was held a — a case litigated in this Court Jenkins versus Georgia.

As far as the FBI was concerned, those were legal materials and then they took them.

That was, in our opinion, we argue a seizure.

Potter Stewart:

Well, what if they had been simply stolen by a thief in transit they certainly wouldn’t have been the property of the thief even arguably.

Glenn Zell:

That’s correct.

Potter Stewart:

And what if the thief had voluntary given them to the FBI?

Would you have a Fourth Amendment violation?

You’d have a larceny, but would you’ve had a constitutional violation?

Glenn Zell:

Probably not because you don’t have the First Amendment issue involved, which is —

Potter Stewart:

Just as much as you do here.

Glenn Zell:

Well, the — the goods are — are stolen.

They’re not presumptively protected.

Glenn Zell:

They’re not stolen as —

Potter Stewart:

Well, the goods are presumptively protected by the First and Fourteenth Amendment.

Glenn Zell:

Yes, these films are.

Potter Stewart:

Yes.

And that’s true whether it’s a thief who takes them or whether it was the L’Eggs, L-‘-E-G-S — E-G-G-S, that pronounced as L’Eggs, the stocking company.

Glenn Zell:

That’s correct.

And well, I would still argue that — that they had nowhere to keep them, the FBI.

They either should’ve published by publication or attempting to notify the sender or the shipper.

They would turn it to the common carrier and easily found out because people — the record shows people came by and asked for it.

Where was it? Can we pick it up?

And you’ve got 871 films and the FBI just sitting on them, involving 25 different prints.

As a matter of fact in the indictment, they only indicted on five films.

Warren E. Burger:

Let me change slightly Mr. Justice Stewart’s hypothetical theory.

Suppose they had been pilfered, as he suggested, by thieves in transit and then rather than having the thieves turn — them over to the FBI, the thieves catch the — the FBI catch these thieves for some other matter and find them in possession of this material.

Do you say that’s a seizure by the FBI?

Glenn Zell:

No, because — well as a third party, I wouldn’t consider that it’s seizure under those facts.

But under the facts, we have presumptively protected materials and you have strict procedure requirements under Heller and Roaden, that would become a seizure.

The First Amendment is a fundamental amendment and to allow the FBI to sit on such a massive amount of material without going to a magistrate, I think, is a danger in a free society.

Warren E. Burger:

Would your position be different if the FBI had to kept the 25 samples or the five and turn all the others over to your client?

Glenn Zell:

Yes, I think the — I think the procedural sequence requires that.

They don’t need 871 films —

Warren E. Burger:

Well —

Glenn Zell:

— and 20 different kinds.

Warren E. Burger:

You — you say then you wouldn’t be here?

Glenn Zell:

Well, if they had been properly notified, went to a magistrate to determine they’re obscene so they could keep them, if they had then returned the films they didn’t need and kept the only ones that they felt were obscene, of course that that’s what I think as I understand it, your procedural safeguards the you’ve set on your opinions require — in the Sherwin case for example, we — that the Fifth Circuit cites the majority opinion.

There, the agents saw two magazines.

They didn’t take the shipment or — they took it to there office, they immediately went and got a warrant, there was very limited if any, prior restraint.

They came back with a warrant.

Now, in Kelly, they held it was this seizure from the common carrier, because there was a — it was a seizure, it was First Amendment protecting materials and there was no procedural safeguards involved.

I think you read the First and the Fourth together.

Glenn Zell:

I think it’s a dangerous thing to allow this to happen.

And — and as I point out in the indictment, there was only five films alleged to be obscene, 20 were not even alleged to be obscene.

Lewis F. Powell, Jr.:

Mr. Zell —

Glenn Zell:

Yes, Your Honor.

Lewis F. Powell, Jr.:

— you said that you had — through hearsay that these films were in the possession of the FBI, why, as a practical matter, didn’t you demand them?

Glenn Zell:

Well, as a practical matter, we weren’t sure — the client said these weren’t sure.

Lewis F. Powell, Jr.:

Wouldn’t — wouldn’t have been any difficulty to demand them even if he was sure?

Glenn Zell:

Theoretically, if they — they could’ve demanded them, they could have after when they found out it maybe a month later —

Lewis F. Powell, Jr.:

Did you make — did you make a conscious decision not to demand them?

Glenn Zell:

The — we weren’t sure, we weren’t sure where the films, where we shoot.

Lewis F. Powell, Jr.:

Well, you — you had a pretty good idea where they were.

Glenn Zell:

I know about pretty good idea.

We — we did know where.

We thought they have been stolen first or at least my clients did, because they were used to pilferage.

Then they were told it was the FBI.

Lewis F. Powell, Jr.:

Did you make any effort to locate them?

Glenn Zell:

No.

To answer your question, no, they did not after or about a month or two they’d — they thought it would turn out that some litigation or — or it was just lost.

Usually, the clients take a negative act because of so much stealing and why use these fictitious names is that it’s been — it’s been stolen.

That was their general attitude.

It happens so often before.

We just taken and get used to that occurrence as in Kelly where they point out seven of L’Eggs shipments have been stolen.

They just assume that it was stolen.

Didn’t take it seriously, of whatever reason, of course, I don’t know what’s in their minds, but we thought they were just gone.

Warren E. Burger:

You made a point of distinction between films and firearms sawed-off shotguns.

Could many people think the Constitution, there was a presumptive constitutional protection to bare arms was this not — not so?

Glenn Zell:

That’s frivolous.

That argument — I think this Court has already decided that — about protecting at the militia, that I think they’ve decided on the case, I think it was Miller versus United States.

You’ve already allowed gun laws and statutes to regulate different type of weapon so I find that argument, this was analogous and also it’s been decided by this Court very clearly that the — arms can be regulated by the State and federal governments.

Warren E. Burger:

In other words in each case, it’s — it’s a presumptive protection with one little presumption that can be overcome.

Glenn Zell:

Yes, in particularly where you have the First Amendment in expressing materials, in particular whether it entirely suppressed completely.

Warren E. Burger:

You — you make that higher than the right to bare arms?

Glenn Zell:

Well it’s the First Amendment.

But no, I think — I think in a free society, ideas, communication is fundamental — so fundamental.

And the right to bare arms involves I think, a militia and I don’t — I — I feel it’s a — the Government has the right to regulate weapons, I don’t think there’s any doubt it, these courts decided.

Not only in this — in this Court, but in the State of Georgia decided in the Supreme Court of Georgia, so there’s no problem with that.

Then — then they view the films two months later.

There’s no continuing search why did they get a warrant at that time?

Two months later, they’ve looked at the covers all can see for argument purposes, they have probable cause.

Why did they get a search warrant then?

It’s like the case of Michigan versus Tyler, the fire case.

That police run the property, then later on, they came and they said let’s go back again and search it.

This Court held a separate search.

So even if you assume it was not a seizure going a month or two months later, would have probable cause to get a warrant, they don’t do it.

That is certainly a search of the films and they didn’t do it.

There were no exigent circumstances.

Clearly as in the Haes case we cite in our brief, I think it was in the Eighth Circuit.

They held to view the films was a search and clearly the FBI could have got a warrant at that point.

And then we, of course, analogize this to the Arkansas versus Sanders and Chadwick versus United States.

Luggage, boxes, compartments, here was a compartment, 871 of them.

There’s probable cause that they may be obscene.

Why would they require a warrant as you did on Chadwick and Sanders?

John Paul Stevens:

Mr. Zell, what was going to happen to the films if they’d gone on their intended route?

Glenn Zell:

I’ve no question in mind.

They would’ve been sold and distributed in Atlanta.

John Paul Stevens:

But did your client then retained a — an expectation that they would not be publicly viewed? What kind of privacy interest did he retain?

Glenn Zell:

Well in the —

John Paul Stevens:

You anticipate that they would be shown to people that he —

Glenn Zell:

They —

John Paul Stevens:

— don’t know.

Glenn Zell:

— they would be distributed yes, they would be shown.

John Paul Stevens:

Are they exhibited —

Glenn Zell:

Purchased —

John Paul Stevens:

— publicly?

Glenn Zell:

No.

These were 8-millimeter reels.

Apparently, the courts are not familiar with them and they’re purchased by a customer and taken out of the store.

They’re only 200 feet long with thereabouts.

And you go in the store and purchase them and take them to your home or wherever to view them.

John Paul Stevens:

I can understand sort of an unfair competition kind of privacy somebody shouldn’t be looking at stuff —

Glenn Zell:

[Laughs]

John Paul Stevens:

— intended to sell, but is there a constitutional privacy interest in not having somebody see that which is being offered for sale in effect?

Glenn Zell:

Well, here — again you must read the First and Fourth Amendment together.

They are keeping the films.

They want to look at them.

Shouldn’t they get —

John Paul Stevens:

Your clients didn’t want to look at them anymore, did they?

Glenn Zell:

I’m sorry, Your Honor.

John Paul Stevens:

Did your clients want to look at them anymore?

Glenn Zell:

Well, they — well [Laughs]

John Paul Stevens:

You mean —

Glenn Zell:

I guess they would want — not in the — not particularly, no.

They want to sell them.

I realized what you’re saying, but all we’re only —

John Paul Stevens:

You’d like a privacy interest in a — in a billboard or something like that, isn’t it?

Glenn Zell:

Yes, but — but they’re keeping them.

They want to keep them.

They’re not for the FBI, they want to seize them.

And if you want to seize them after looking at them and — and searching must I —

John Paul Stevens:

Well, we get by to see — if — if we go by to seizure.

John Paul Stevens:

I understand —

Glenn Zell:

Yes.

John Paul Stevens:

— your point that when they were — got in the FBI’s possession, I’m — I’m directing my question really at — at screening, at — at viewing them.

When — when as I understand the purpose of the whole shipment was for someone other than your clients to view them.

Glenn Zell:

Well, my clients, of course, in the store, they’re not viewed by people.

They must buy them first before they’re viewed.

They’re not —

John Paul Stevens:

Oh, as I say, there’s a commercial interest —

Glenn Zell:

Yes.

John Paul Stevens:

— that they are protecting, I understand that.

Glenn Zell:

And — and they’re not — and — and you must buy the film before you could view it.

And in this case, the FBI, of course, just took them we’d say, illegally then further viewed them illegally.

They have no right, they didn’t purchase them.

They — if they want to view them to — for purpose of prosecution, I think they should get a warrant.

It’s like a seizure, it’s like you go in the store and you took the film off the counter without paying for it and decided to look at it.

That would be in a sense certainly a search and then seizure as well.

Warren E. Burger:

Mr. Mayock.

W. Michael Mayock:

Mr. Chief Justice and may it please the Court.

What I would like to do at this time is to address a couple of points which I believe should be brought to the Court’s attention involving what I ascertain to be mistake — misstatements of fact contained the Government’s brief.

And one in particular, I think, is incredibly significant down on page 37 and — and thereafter, wherein is — it is indicated that the petitioners in this case had decided to return the films to a warehouse for storage.

In fact there is nothing in the record to indicate that the purpose of the shipment to Atlanta was for a storage.

It could well have been that the purpose of that transportation was in fact, to sell these particular films in Atlanta which as I understand, has the highest per capita homosexual population outside of San Francisco.

There are two other points that I like to bring to the Court’s attention.

They relate to the film — films themselves which are 8-millimeter film that are so small, they can — they cannot be viewed by the naked eye.

There is apparent representation to the effect that people at L’Eggs Products Inc. have already ascertained what it was that was on these films when in fact, all they had ascertained was the nature of the box cover which contained a depiction in cartoon fashion of two nude males from the waist up, embracing and — and kissing and a description purporting to represent, but not necessarily representing what it was that was contained in the films.

Obviously, the FBI did not believe that this was necessarily what was contained in the films because that was the very reason they screened them was to find out what it was that was contained on these films.

William H. Rehnquist:

Was the description prepared by your clients that kind of cover for the films?

W. Michael Mayock:

As it turned out, Your Honor, the — the films as — were pretty much as described in the blurb contained on the box covers.

The box covers incidentally were not charged as being obscene.

Only the films themselves which were later screened about two months subsequent to the time that they were initially taken by the FBI.

W. Michael Mayock:

What I would like to do is to address rather briefly several points which I feel are significant, which have not been addressed at this point by Mr. Zell.

First of all, I would direct the Court’s attention to the scienter issue.

Now, there was clearly ample proof provided that my client, Mr. Walter, was engaged in a business which dealt in sexually explicit material.

However, I would suggest to this Court that in accordance with the dictates of Hamlin and Smith, that there has to be some proof of knowledge showing that in fact, he had information of the nature, character and content of the particular films.

That he knew they were being shipped interstate and that he knew that a common carrier was being used for that purpose.

There is nothing other than a silent record to indicate that Mr. Walter was involved in this operation from a point in time, two months prior to this shipment, to a time, two months subsequent to it.

The Government has argued that there was evidence showing that he participated directly in the day to day affairs of this particular business.

However, there is no evidence showing that any of these other shipments purportedly made interstate involved obscene material.

And as this Court well knows Roaden versus Kentucky requires the presumption to be made that material not adjudicated to be obscene is to be presumed not obscene.

Hence, the only material properly brought before the Court and the jury in this case involved the films in question.

And as far as those films were concerned, there’s nothing given any sort of nexus to Mr. Walter and those particular films as far as the element of scienter is required.

Turning to the point raised in the brief, in connection with the requirement that the Court instruct in accordance with the dictates of the Pinkus case that, “person” is to mean adult.

It need be pointed out that on at least five separate proposed jury instructions, the defendant sought to have that sort of definition be made known.

I think that it’s clear to anyone who understands the English language that the word, “person” subsumes the class, “children” and accordingly, the instructions given by the Court were fatally defective for the reasons earlier enunciated in Pinkus.

And the only thing that we can do and this is what the Government would have us do, is to assume that obviously this jury forgot about children, because of the instructions given and only applied the attributes of the average person.

However, an average person includes people of all ages, hence that particular argument is not effective and moreover, to assume that the jury did not follow the directions of the Court and use the standard of the average person, would be to do an injustice to the jury and it’s understanding of the Law as given it by the Court.

And moreover, since the jury verdict was a general one, there’s no way that we can know that in fact that jury did not do exactly what was forbidden by Pinkus — that being to include children within the community.

While we’re talking about jurors, very briefly I would point out that insofar as one of the jurors was involved in this case there is testimony.

In fact, the record by the trial judge indicates that one of the jurors had to be directed to put away a book or magazine on the only occasion on which he viewed the film.

Subsequently, the jury did not see the film again in the jury room.

The trial judge observed that sufficient attention had been paid by this particular juror in that he observed that juror watching the film on 7 of 10 occasions.

There were proffers of proof made that members of the press in attendance of this trial would’ve observed that this particular juror did not watch the film for substantial periods of time.

William H. Rehnquist:

Do you think it would be a ground for a reversal in this Court if there were a proffer of evidence that a juror had dozed off during the testimony of the witness in an — the — the case of perfectly orthodox tour or contract case?

W. Michael Mayock:

I think if a sufficient record establishing that fact is made that that may well be the case.

But where we have an observation by the district judge saying that on 7 out of 10 times he watched — in other words 70% of the time he was watching the film which the dictates of Miller versus California require that the work be, “Taken as a whole.”

That there is no way he could have taken it as a whole watching only 70%.

William H. Rehnquist:

Before you’d have a lot reversal, if you require the juror to give his undivided attention from 10 to 12 and 1:30 to 4:30, five days a week, whenever the Court said if you required every — everyone of the 12 jurors.

W. Michael Mayock:

Well, Your Honor, I understand that’s what we tried to do when we select a jury.

In fact one of the proffered voir dire questions to this panel was whether they could view this film with an open mind and open eyes.

And that proffered voir dire questions was not asked of the prospective panel and in fact it turned out to be very critical because this juror obviously chose not to view substantial parts of the film.

Harry A. Blackmun:

Is — is the issue of obscenity before us?

W. Michael Mayock:

Pardon, Your Honor?

Harry A. Blackmun:

Is the issue of obscenity before us?

W. Michael Mayock:

No, it is not.

It hasn’t been raised directly.

It was raised in the Fifth Circuit.

Insofar as the — the last —

Byron R. White:

You don’t — you don’t think the — you don’t think your — any of your — in any of your claims of error subsume a — a claim that it — the — of — — of — that any conviction under the statute is unconstitutional?

W. Michael Mayock:

I’m not sure I understand.

I would obviously take the posture that the statute itself is unconstitutional.

However, that issue hasn’t been presented to the Court.

Byron R. White:

All right.

W. Michael Mayock:

Insofar as this —

Byron R. White:

So your answer is, yes — no, that question is just not here?

W. Michael Mayock:

That’s correct, Your Honor.

At this time, Your Honor, I would like to reserve my remaining time.

Warren E. Burger:

Very well, Mr. Mayock.

Mr. Schulder.

Elliott Schulder:

Thank you.

Mr. Chief Justice and may it please the Court.

I’d like first to respond to some of the factual questions from the bench and some of the statements by counsel concerning the facts of this case.

First of all, Chief Justice Burger asked when petitioners actually discovered that the FBI had the films.

On pages 8 and 9 of our brief, we refer to the record wherein we state that about two to three weeks after the transfer of the films from L’Eggs Hosiery Company to the FBI, codefendant Grassi — Michael Grassi called the L’Eggs Company and discovered that the films had been transferred to FBI.

The record also shows that Grassi then informed petitioners, Walter and Sanders that the films were in the FBI’s possession.

Furthermore, I believe petitioner Sanders testified or there was a testimony to the effect that petitioner Sanders informed the — his employees to destroy any bills of lading or other documents that would connect him or the corporations to these films.

In response to Mr. Justice Powell’s question —

Warren E. Burger:

Do you — do you suggest that there was some kind of a constructive abandonment —

Elliott Schulder:

Well, that —

Warren E. Burger:

— as — as on the basis of —

Elliott Schulder:

— part of the Fourth Amendment argument is that petitioners essentially relinquished or abandoned any reasonable expectation of privacy in the shipment of films.

Elliott Schulder:

But we don’t – we don’t seek to — to use their destruction of the bills of lading or other documents to support that because that occurred after the films were transferred to the Government.

Mr. Justice Powell asked whether there was any — any evidence that petitioners made a conscious decision not to demand the films from the FBI.

Well, there may not be testimony to that effect, but I believe the record of the suppression hearing indicates that petitioner Sander’s attorney, Mr. Zell, candidly explained to the District Court that the reason that petitioner did not come forward to claim the films was that he did not want to identify himself to the Government and connect himself with these films.

So that it seems clear that the failure to request an adversary hearing rests entirely on petitioners.

They had actual notice that the Government had the films.

And yet they didn’t come forward and make any request either for return of the property or for an adversary judicial determination of obscenity.

Byron R. White:

Do you think then that the Government could or the FBI could just have kept the films and never done anything with them?

They weren’t — didn’t belong to the FBI and then the shipping didn’t belong to the L’Eggs Company from —

Elliott Schulder:

That’s correct.

Byron R. White:

— where the —

Elliott Schulder:

I believe — I believe that the First Amendment would not have required the Government to do anything.

Byron R. White:

I didn’t — I didn’t ask you about the First Amendment particularly.

I just said in general could the — was the United States entitled to keep these films?

Elliott Schulder:

I believe so, unless there was a request for their return by someone who had a proprietary relationship.

Byron R. White:

Or you just — you just generally or rather repository for unclaimed goods at — by — at shipping lines or what?

Elliott Schulder:

No, not necessarily.

But the Government —

Byron R. White:

Well, do you know where they came from.

You know what shipping company had them, do you?

Elliott Schulder:

That’s correct.

So you could —

Byron R. White:

How could (Inaudible) what business — was it yours that keep the property?

Elliott Schulder:

Well, the Government kept the films as evidence in the criminal investigation and prosecution.

Byron R. White:

Well, I know, but that’s after you thought they were — they were evidence, after you had looked at them.

Warren E. Burger:

Would they not be subject to an action and conversion if the petitioners had wanted to bring such an action?

Elliott Schulder:

That’s possible —

Warren E. Burger:

Or —

Elliott Schulder:

— Your Honor.

I don’t really —

Warren E. Burger:

— or taking the property without compensation?

Elliott Schulder:

I assume so.

I don’t really know the answer to that question.

Thurgood Marshall:

I can’t conceive what the procedure by which you would just keep property and not prosecutor do anything with it.

Elliott Schulder:

Well, what occurred in this case was the Government did — did prosecute and initiate charges.

Thurgood Marshall:

But the question was do — was it possible just to keep it and not do anything with them?

And you said they could.

And I don’t see how you could keep it and not do anything with it.

Elliott Schulder:

Well, I assume unless a claim has been made —

Thurgood Marshall:

And then if — if you want to answer — you tell me where you will keep it.

Elliott Schulder:

I assume that unless a claim had made for these goods, the Government could — could have either kept it or used it as evidence to initiate a prosecution.

Thurgood Marshall:

Well, how could they just keep it?

Warren E. Burger:

Well, was there ever a claim made before?

Elliott Schulder:

Well, there was no claim made until after indictment.

William H. Rehnquist:

Well, that almost goes to the common law of trover, doesn’t it, as to whether someone to whom goods are delivered who does not own the goods is obligated to return them to someone he knows whether a demand has to be made and that sort of thing.

That’s more of a civil law (Voice Overlap) —

Elliott Schulder:

That’s correct.

That’s correct, Your Honor.

I’d like to turn now to the suppression issue that — that’s been raised.

As far as the other issues, we’ve divided the questions in this case into two general categories for purposes of convenience.

The first deals with the question whether petitioners may seek suppression of the films because of alleged violations of the Fourth and First Amendments.

And the second category of issues we place within the District Court’s conduct of the trial referring to the jury instructions, jury voir dire, the scienter issue.

And as to these latter issues we essentially rely on our brief.

We begin with the Fourth Amendment claims that were raised by petitioners.

They argue that the acquisition of the films from L’Eggs and the subsequent inspection of the films by the Government, violated their rights under the Fourth Amendment and require application of the exclusionary rule in this case.

At the outset, we would like to note that only the individual petitioners here Walter and Sanders may properly raise this issue before the Court.

As the Court of Appeals noted, the corporate petitioners, that is Trans World America and Gulf Coast News, never moved for suppression of these films from evidence in the District Court.

They therefore, waived any right to suppression under Rule 12 of the Rules of Criminal Procedure.

And we submit that they’re foreclosed from raising the suppression issue here.

At least since this Court’s decision in Katz versus United States, the touchstone of the Court’s analysis in the Fourth Amendment area has been whether an individual’s legitimate expectation of privacy has been invaded by an unreasonable governmental intrusion.

A recurrent theme of our Fourth Amendment analysis in this case is that petitioners Walter and Sanders did not have an expectation of privacy protected by the Fourth Amendment with respect to the packages of films.

Elliott Schulder:

What actually occurred here was that petitioners used a common carrier to ship a large quantity of pornographic films across state lines, using fictitious names for both the shipper and the consignee and giving a false address for the shipper and no address for the consignee.

Under these circumstances, we submit, petitioners knew or should have known that the shipment might inadvertently come into the possession of an innocent third party.

In this case a legitimate business, the L’Eggs Hosiery Company.

It was also foreseeable and petitioners assumed the risk that once L’Eggs inspected the contents of the packages, they would contact law enforcement authorities and on its own and on their own initiative, turn the shipment over to the Government for possible prosecution.

The fact that petitioners may have retained the property interest in these goods, does not affect the Fourth Amendment analysis in this particular case, because we submit, they had no legitimate expectation with risk of privacy with respect to the films.

Now, it may be that if petitioners had chosen to possess these films at home and to view them, they would be protected from —

Byron R. White:

What if they had him — what if they had him in a commercial establishment and had them on the shelves for sale?

Elliott Schulder:

If they had them in a commercial establishment for sale, they would know — there would be no expectation of privacy in the contents of the film as necessarily.

As — after all as Mr. Justice —

Byron R. White:

But until you – until you had a proceeding and had them declared to be obscene and finally you couldn’t take out of circulation all copies of the film.

You couldn’t maybe have —

Elliott Schulder:

Oh, clearly —

Byron R. White:

— one of them.

Maybe you could have one of them for evidence.

Elliott Schulder:

Well, clearly, the Government could not seize the films from a commercial establishment without a warrant issued by a neutral magistrate and a subsequent determination at the request of the bookstore or establishment owner for determination of obscenity under the Heller case.

But as far as any claim of privacy is concerned with respect to the — to the films, we don’t see that there’s any special privacy claim simply because they may argue with the First Amendment protection involved here.

Byron R. White:

Well, I suppose part of the suppression argument is based on the First Amendment too.

Elliott Schulder:

That’s correct.

Part of their First Amendment argument is based on the First Amendment, but we submit that before you even analyze the case in terms of the First Amendment and — and Fourth Amendment interplay, you first have to make a determination whether the Fourth Amendment applies at all.

We don’t — we don’t (Voice Overlap) —

Byron R. White:

Suppose the — suppose what you had seized from L’Eggs or what — or that you’d taken delivery out from L’Eggs was a locked trunk, and you had — and you had probable cause that you thought to believe that it contained obscene films, could you open the box without any — without a warrant?

Elliott Schulder:

Well, for a locked trunk, we would be in a situation very similar to Chadwick and Sanders situation.

Byron R. White:

Well, what about — could you — could you tell what these films were without screening them?

Elliott Schulder:

Well, it — it was clear from the exteriors of the individual film cartons what the films in fact depicted.

The cartons gave graphic and detailed descriptions of the actions portrayed in the films.

So that clearly, you could tell by looking at the cartons themselves, what — what was inside the carton.

Byron R. White:

And so you didn’t need to screen them, but you did.

Elliott Schulder:

Well, we submit that the screening itself did not amount to a search, simply because there was no longer any expectation of privacy with respect to the contents.

Byron R. White:

But – but you think – you think that because that cartons indicated to you that the films were obscene that just because of your own determination without submission to a judge or anybody else you were entitled to hold all copies of the — of the films?

Elliott Schulder:

Well, not — not exactly.

Elliott Schulder:

We’re not making the claim —

Byron R. White:

Well, what is your exact claim, was it by (Voice Overlap) —

Elliott Schulder:

Well, we’re not making the claim that the — the contents or the descriptions on the boxes gave the Government probable cause to believe the films were obscene and to hold —

Byron R. White:

In — in your judgment and the judgment of the FBI.

Elliott Schulder:

The argument is not probable cause, but it’s a lack of a legitimate expectation of privacy in the contents of the films.

Byron R. White:

But it gave you probable cause to keep them, to — to believe that they were obscene, is that it?

Elliott Schulder:

No.

We’re not saying that at all.

It’s – it would – it’s as if in this — it’s the same — the same argument would be made, if we had a transparent plastic bag containing white powder which the police suspected were drugs.

We submit that there would be no legitimate expectation of privacy when the contents of that bag and that the police would not need a warrant to open the bag, inspect the contents and perhaps test the contents in the laboratory.

Warren E. Burger:

Suppose – suppose that, as a matter of law, the Government should’ve returned all, but 25 samples as was intimated, I think, in Heller.What effect would that have on the 25 that were retained?

Elliott Schulder:

Well, our submission is that the 25 that — that were retained would still be admissible in evidence.

As —

Warren E. Burger:

(Voice Overlap) the Government might be subject to some kind of a civil claim for —

Elliott Schulder:

Perhaps.

Warren E. Burger:

(Voice Overlap) —

Elliott Schulder:

— but that should not affect the right of the Government to go ahead with a criminal prosecution.

The Courts of Appeals are unanimous in holding that a — any prior restraint by the Government in holding on to films without obtaining an adversary proceeding with respect to obscenity does not require suppression of films from evidence in the criminal prosecution.

Byron R. White:

So this is a sort of a plain view argument that you just had the — what was obviously or what you gave me probably cause to believe was a — was obscene material in violation of the law and it had been delivered to you and you could keep it.

You don’t think that the case is any different than if you — just because of the First Amendment is involved you don’t think it’s any different than your plastic bag and — and drugs.

Elliott Schulder:

Well, Mr. Justice White, we don’t rely on the plain view doctrine to justify the Government’s acquisition of the films from L’Eggs.

Byron R. White:

I know — I know that.

But how about keeping them?

Elliott Schulder:

Well, our submission as far as keeping the films is that —

Byron R. White:

What would you have done — what would you have done if you — if after you screened the film it turned out that the designations on the box were completely false?

Supposing that you have screened the films and completely innocent.

What you have done with them?

Just put in the basement or would you try to give them back to somebody?

Elliott Schulder:

I suppose that the Government may have — if — if the Government were able to discover the true owners of the films —

Byron R. White:

I hope you would.

Elliott Schulder:

— the Government would have returned them.

John Paul Stevens:

Mr. Schulder can I ask you about your — the argument that there is no expectation of privacy — as I understand that you make two separate arguments on that point.

One it’s because of the manner in which the packages were labeled.

There was never any expectation.They soon — they waived their right because it was very probable that some third party will get access to them.

Now that’s —

Elliott Schulder:

In assumption of those charges —

John Paul Stevens:

— if that’s true it doesn’t matter whether they are guns or personal business records or anything like.

Someone who just sends a package to a fictitious person in a way that there’s a fair chance it would get lost and the shipment has — gives up all Fourth Amendment interest in the — does — do you have any authority for that proposition?

That’s a rather extreme position, I just wondered.

Elliott Schulder:

Well, we — we have no specific authority with respect to precisely this type of situation, but we have analogized in our brief the other —

John Paul Stevens:

All right.

Elliott Schulder:

— situation such as —

John Paul Stevens:

Then your second theory which is — is quite different is that — that there were sufficient indicia of what the contents were on the outside of the box to — to give up any expectation of privacy.

Now in that theory, I suppose if someone shipped a briefcase in which he said on the outside of it, “Records of transaction in a Swiss bank account between Mr. A and Mr. B” who had previously denied they ever had a Swiss bank account, you could open that without a warrant, because by the outside of it, you know the contents had something illegal in or you’d have probable cause to believe what it got —

Elliott Schulder:

Well, as — as I said in addressing Mr. Justice White’s questions, I’m not sure that probable cause is really the —

John Paul Stevens:

Well, your position I take it —

Elliott Schulder:

— determining factor here.

John Paul Stevens:

— is that if you have probable cause from the outside of a packet — package to know the contents are illegal, you can go ahead and open without a warrant?

Elliott Schulder:

That’s correct.

John Paul Stevens:

Well, then if you don’t have probable cause you couldn’t get a warrant so that absolutely removes the — the requirement of a warrant from every inspecting parcels that come into your possession that you don’t expect to get.

You’d never need a warrant.On the one hand, if you don’t have probable cause, you can’t get a warrant.

If you do have probable cause, you’re saying you don’t need a warrant.

Elliott Schulder:

Well, our submission is that once the container clearly demonstrates or —

John Paul Stevens:

By “clearly demonstrate,” do you mean that it demonstrates more clearly than just giving probable cause?

Clearly, it didn’t have proof beyond reasonable doubt or you would never have had to view the films.

If you view them, they’ll be sure they were what you thought they were and then there would be proof of guilt.

But what you’re saying is as I understand your position is probable cause dispenses with the need of a warrant.

Elliott Schulder:

That’s not exactly what we’re saying.

In fact we — we state in our brief that if — we discussed that Chadwick and Sanders cases, if there clearly in Chadwick and Sanders was probable cause to believe that the luggage in those cases contained marijuana — at least in Chadwick the dog sniffing out the suitcase gave a clear indication to the agents —

John Paul Stevens:

The probable cause here is that in labels on the packages themselves.

John Paul Stevens:

That’s what – what I mean, you know, the cartons and all that — that is what justifies as I understand your position.

You’re opening like — viewing them is just like opening other package I’d suppose.

I’m not quite clear.

I — I’m not sure I understand your theory as to what boils down.

Elliott Schulder:

Well, there — there are two related — I’ve strains to what we’re saying here.

The first is that film cartons generally are not like luggage — not like a closed foot locker in Chadwick or a suitcase in Sanders.

They’re not ordinarily repositories for personal effects.

And second the exteriors of these particular containers indicated clearly just as if they had been transparent bag showing what was inside, what exactly was contained within the containers.

John Paul Stevens:

Well, but this — that you now argue with transparent bag.

How clearly that it’d indicate — that it’d indicate beyond reasonable doubt?

Or that it’d give you probable cause to know what was in?

And was there some middle ground if you’re developing a new concept of something more than probable cause and something less than evidence sufficient to convict?

Elliott Schulder:

I’m not really certain what the answer is.

And we’re not —

Warren E. Burger:

Well, are the — are the items which appear in the footnotes of the Court of Appeals’ opinion, the descriptions that were found?

Elliott Schulder:

That’s correct.

The Court of Appeals has a footnote.

Warren E. Burger:

And could that leave anyone in doubt — anyone in doubt of the pornographic nature of the materials?

Elliott Schulder:

We don’t believe so.

Warren E. Burger:

Or wasn’t that the answer to the question there?

Elliott Schulder:

Well, except that —

Warren E. Burger:

That the – that the description gave probable cause — the description prepared by the petitioners of their own materials, gave probable cause in abundance.

Elliott Schulder:

The description gave probable cause or perhaps more than probable cause as to what was contained inside of these film cartons.

Lewis F. Powell, Jr.:

Counsel, may I ask this question?

We know these close and difficult Fourth Amendment questions evaporate if the Government had reasonable cause to believe that the respondents or the petitioners here had consented that — to the FBI keeping the film and looking at them?

If — if the petitioners had been standing beside an FBI agent and said nothing when he opened the packages and looked at the film would that constitute consent?

May you infer the consent existed?

Elliott Schulder:

Not necessarily.

Lewis F. Powell, Jr.:

Why not?

Would you stand by and allow somebody to open something in which you had a reasonable expectation of privacy and say nothing?

Elliott Schulder:

Well, the — which containers are you talking about?

Lewis F. Powell, Jr.:

I’m talking about anything that (Voice Overlap) —

Elliott Schulder:

Well, we have two — two types of containers.

We have the packages in which —

Lewis F. Powell, Jr.:

I’m talking —

Elliott Schulder:

— the individual —

Lewis F. Powell, Jr.:

— I’m talking about — let’s say viewing the film.

Elliott Schulder:

Okay.

We submit that the consent of — of these petitioners is irrelevant in terms of you —

Lewis F. Powell, Jr.:

Why — why do you — why do you make that concession?

Potter Stewart:

Well assuming, if they did consent, it’s –-

Elliott Schulder:

If they did consent we don’t have to reach the — the other —

Lewis F. Powell, Jr.:

Are you familiar with (Inaudible)

Elliott Schulder:

Sure.

Lewis F. Powell, Jr.:

Well, don’t you agree that consent may be implied as well as expressed?

Elliott Schulder:

Yes, we do.

Lewis F. Powell, Jr.:

Well, I wonder why you don’t argue that.

Elliott Schulder:

Well, I suppose —

Lewis F. Powell, Jr.:

If you told us at the outset of your argument that plaintiff’s — petitioners knew the FBI had the film.

And that counsel said at the suppression hearing that the reason they hadn’t claimed them was his clients didn’t want to get implicated into this.

Elliott Schulder:

That’s correct.

But your question had to do with the viewing of the film.

Lewis F. Powell, Jr.:

Well, I — I would apply to both — keeping them and viewing them.

Is it unlikely that the FBI would keep them without viewing them?

Elliott Schulder:

No, not at all.

The viewing may have proceeded in this case.

The time it — period though at which the petitioners actually received notice that the Government had possession of the films, but we would argue certainly that — that once they did have notice and they didn’t come forward and — and request the films or claim them, they in effect did consent to the Government’s keeping them or — or putting in another way, they — they abandoned or relinquished their interest in the films to that stand.

Lewis F. Powell, Jr.:

Right.

Well the short answer to my first question is that if we conclude from the record that there was implied consent.

One, to retaining the films and two, to viewing them that answers all the other questions doesn’t it?

Elliott Schulder:

I believe so.

William H. Rehnquist:

Following up on Justice Powell’s questions about the difficult Fourth Amendment issues in this case is — would you agree there isn’t as bright a line as might be implied between the simple suitcase or steamer trunk which one has reason to believe might contain a contraband and say a pistol holster with the outlines of a pistol on it as to whether that may or may not be plain view?

You can’t actually see the pistol and yet the chance is 99 out of 100 that it does have a pistol in it?

Elliott Schulder:

Certainly.

John Paul Stevens:

Mr. Schulder, assume that a misdelivery occurred of a carton in the same fashion you had here and it got into the hands of the FBI and the carton and had a label on it — this box contains the records of my purchases and sales of firearms and somebody’s name on the bottom of it and the man was not a registered firearm dealer.

Could the Government open that carton without a warrant?

In the — in your view?

Elliott Schulder:

In our view, yes.

John Paul Stevens:

On — on what theory?

Because there’s probable cause to believe it contains it?

Elliott Schulder:

Well, this — the — the exterior of the carton itself provides ample probable cause — ample basis.

John Paul Stevens:

And all the Government needs to open a container that comes into its possession is probable cause, that’s your submission.

Elliott Schulder:

Well, I don’t want – I don’t want to take that position because the Court explicitly rejected it in Chadwick.

John Paul Stevens:

Well [Laughs] then it seems to me what you’re saying in substance is that your position and — and final analysis rests precisely on the grounds rejecting in Chadwick.

Elliott Schulder:

Well —

John Paul Stevens:

That’s what I’m trying to find out.

Elliott Schulder:

I don’t think so.

As I was trying to say earlier, in Chadwick, the exteriors of the —

John Paul Stevens:

Well, I’ve given you an example of a carton that had exteriors.

I gave you probable cause to believe there was evidence of illegal gun transactions within the – within the container.

And I’m asking if you need a warrant and you said, no, you don’t.

I’m not quite sure how squared out with Chadwick.

Elliott Schulder:

Because when — when the person places his items within that container and writes on the outside what the container actually contains, he is in effect, opening up the container to anyone who wants to look at the contents.

William J. Brennan, Jr.:

What if he puts right below that, “No stranger may open.”

[Laughter] “Third parties please do not open.

This is notice for my secretary’s guidance.”

Or something like that.

Elliott Schulder:

Well, I —

William J. Brennan, Jr.:

You cannot — you can inadvertently make known what’s inside something that you don’t intend to be public.

Elliott Schulder:

That’s correct.

Elliott Schulder:

But it has to be — there has to be a clear enough indication that the person is retaining some kind of privacy interest in the contents of the package or container.

William J. Brennan, Jr.:

It’s in a container.

Well —

Elliott Schulder:

The question is whether there was a sufficient indication that he wished to retain a privacy interest in your hypothetical.

And in our case, we submit there — there clearly was no — no such indication.

Warren E. Burger:

Well, these – these descriptions on these films went considerably beyond simply saying these are guns purchased.

They — they were explicit in describing the actual content of the film if the — if it’s structured accurately recited them in the footnotes.

Elliott Schulder:

That’s correct and I believe counsel for one of petitioners has indicated that the descriptions were in fact accurate — accurate in terms of what actions were portrayed on the films.

Potter Stewart:

Well, that gives — certainly provides probable cause.

But that’s not the end of the problem as my brother Stevens has indicated in his questions.

Elliott Schulder:

Well, we submit though that by —

Potter Stewart:

And thus assume there’s ample probable cause — as the question of the Chief Justice indicated that were was, but that’s not the end of the problem.

Elliott Schulder:

But here, the information that gave the agents probable cause was placed either by petitioners or it was left by petitioners on the outside of the container.

Potter Stewart:

Well —

Elliott Schulder:

And by that we submit by doing that — by allowing these films to be shipped with that explicit description on the covers they in effect, abandoned any privacy interest in the — in the contents of the individual —

Potter Stewart:

Well they might’ve — it might’ve abandoned the films also, as well as consented.

Elliott Schulder:

That’s correct.

Potter Stewart:

And that would then — the problems would disappear just as they would’ve had.

They consented to the search.

Elliott Schulder:

Certainly.

Byron R. White:

But they — you don’t — you certainly don’t claim that they abandoned any property interest.

They — they claimed their film and wanted it suppressed and wanted it back.

Elliott Schulder:

Well, they didn’t claim the film until after they were indicted.

Byron R. White:

Well, all I say is they didn’t abandon their property interest.

Elliott Schulder:

Well, so far as the Government knew prior to — to the indictment or prior to the motion to suppress, by all appearances, it — it did seem as if they’d — they had abandoned any (Voice Overlap) —

Warren E. Burger:

That was more than a year was it since at — such as the time lapse from the time the FBI got them until they demanded them back?

Elliott Schulder:

That’s correct.

Warren E. Burger:

Nearly two years as I recall the record.

Elliott Schulder:

Well that was nearly two years between the initial shipment and the actual trial itself.

There were almost 20 months between the time that petitioners discovered that the Government had possession of the films and the time they actually made any kind of request for either return of the films or an adversary hearing.

Byron R. White:

At the time of — of the — was there a suppression motion?

Elliott Schulder:

Yes.

Byron R. White:

At that time, did — did the judge determine that there was probable cause to believe the films were obscene?

Elliott Schulder:

Well, the judge did not make a determination on the obscenity question in that — in that —

Byron R. White:

Well, was there ever prior to conviction any judicial — any searching judicial look at the — at the film?

Elliott Schulder:

What happened was the suppression at hearing concluded the day before trial and the District Court stated on the record that since the Court didn’t believe that there was any prior restraint here, since there was no evidence that petitioners didn’t have other copies of the films and that there was no evidence the films were being —

Byron R. White:

How many copies did you have in all?

Elliott Schulder:

There were 871, which we —

Byron R. White:

Constant film or —

Elliott Schulder:

Well, there 25 different titles and so most of them were in fact duplicates.

But what the District Court did was it decided that since the trial was to commence the following day, it would await the trial before any determination of obscenity would take place.

And petitioners, so far as I believe the record shows, did not make any objection to that disposition.

Thank you.

John Paul Stevens:

Mr. Schulder, just curiosity, how many of the titles were — of the 25 titles were determined to be obscene?

Were they all?

I can’t remember.

Elliott Schulder:

Well, the indictment charged five.

John Paul Stevens:

Five is as it was.

Elliott Schulder:

Yes, sir.

John Paul Stevens:

And we don’t know about the other 20?

Elliott Schulder:

No.

Thank you.

Potter Stewart:

Not a conviction on all five.

Warren E. Burger:

Will you tell — tell us about the descriptive matter that’s in the Footnote 4 on page 10 of the Court’s opinion in your appendix, is that the material that would be made available to the customers on the shelf to presumably to induce them to buy their film?

Elliott Schulder:

What was contained on the box covers was to be viewed by potential customers.

Yes, Mr. Chief Justice.

Warren E. Burger:

This was the — this was the, come on, did they get them interested in the contents of the package?

Elliott Schulder:

It was.

Warren E. Burger:

Would you say it overstated or understated?

Elliott Schulder:

I suppose like anything else — like the expression, “You can’t judge a book by its cover.”

Elliott Schulder:

I think the film would have to speak for itself as to whether it was an overstatement or understatement.

Some may be and some might not be.

What I would like to address very briefly is the issue of the implied consent.

Suggest that the record bears ample evidence that the petitioners herein exercised every reasonable means to try to retrieve the particular films as soon as they discovered they had been misdirected.

First of all as far as their legitimate expectation of privacy in relationship to this, I must say that what we have is this a situation analogous to one sending a letter to oneself in that the same individuals are the consignor and the consignee in this particular situation.

That they wrapped the boxes very carefully, that they had made previous shipments using the same name L’Eggs Inc., that they had no reason to expect that a person who one claimed no entitlement to the shipment itself.

Second, refused to pay for it and so indicated as the testimony of Mr. Fox from L’Eggs Products, Inc. indicates, moreover, I would suggest that L’Eggs Products indicated that this was a rather unusual shipment.

Then we have a five-day hiatus between the Friday when the shipment is misdelivered to the Wednesday when the FBI finally stops by L’Eggs Products and picks them up.

During the intervening time, people from the petitioners’ offices have gone to the various terminuses of Greyhound both the originating and ending terminus.

They have made contact with individuals trying to run down the packages.

William H. Rehnquist:

They — they left — as I understand on the third call, the woman finally left her name, but on no calls, they leave their address where they could be reached.

Elliott Schulder:

That I believe, is what the record reflects, Mr. Justice Rehnquist.

But I would suggest that there is also evidence on the record indicating that the FBI was the one, in fact, supervising the activity that occurred in that they were telling people such as Mr. Askew at the Greyhound terminals to find out the names and addresses of these people.

That they were advising people at L’Eggs Products, Inc. not to tell the defendants in this case that in fact the FBI had acquired possession of the property.

And so, in some I think, what we have is a just a situation presenting an earnest, good faith attempt by the petitioners to try —

Thurgood Marshall:

(Voice Overlap) —

Elliott Schulder:

— to get their property back.

Thurgood Marshall:

When did the petitioner demand from the FBI the return of the film?

Elliott Schulder:

Approximately two years after it was taken from them — at the time of the trial.

Thurgood Marshall:

And you — you — could it be said that up to that time, you had abandoned it?

Elliott Schulder:

No, I don’t believe that that was the case.

I think, perhaps —

Thurgood Marshall:

Then what was it?

Elliott Schulder:

The situation was —

Thurgood Marshall:

And lack of interest in?

Elliott Schulder:

Well, perhaps lack of interest in being prosecuted for [Laughs] what turned out to be a —

Thurgood Marshall:

Well —

Elliott Schulder:

— a federal case.

Thurgood Marshall:

— abandonment would — would stop prosecution too, wouldn’t it?

Elliott Schulder:

I don’t know if that would be the case.

Thurgood Marshall:

Well, wasn’t that what you were working on?

Elliott Schulder:

That it was abandoned?

Thurgood Marshall:

Yes.

Weren’t you trying to prevent prosecution by abandoning it?

Elliott Schulder:

To the extent that until such time, I guess, is a prosecution was initiated it would be unclaimed.

William H. Rehnquist:

Why were the bills of lading instructed to be destroyed?

Elliott Schulder:

They were not.

I think that’s a misstatement.

I looked particularly in the record in the parts cited by Government.

I couldn’t find anything reflecting that the bills of lading had been destroyed.

William H. Rehnquist:

Or that there were any instructions to that effect?

Elliott Schulder:

That is correct.

What I would suggest that what we have here is a clear situation involving a prior restraint where that — the burden is attempted to be placed upon the petitioners to demand property which they have been dispossessed and that all notions of procedural due process would indicate that that was inappropriate under these circumstances.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear your arguments next in American Export Lines against —