Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
This is an appeal by Jack Zuideveld and Nirvana Zuideveld, his wife,*fn1 from a judgment of conviction for conspiracy to use the United States mails for the transmission of obscene materials in violation of Title 18 U.S.C.A. § 1461.*fn2
In a single count indictment, appellants and thirty-seven other individuals were charged with the alleged conspiracy. Forty-two other individuals were named as non-defendant coconspirators. The indictment sets out sixty-six overt acts charged to effect the objects of said conspiracy. The conspiracy was alleged to have commenced on or about March 1, 1959 and continued to about the date of the return of the indictment on January 16, 1961.
Of the original thirty-nine defendants, twenty-eight were convicted on pleas of guilty or nolo contendere before trial One defendant died before trial.
The remaining ten defendants went to trial, and of these, two elected to be tried by a jury. The remaining eight defendants, including appellants, waived a jury trial and were tried by the court in a bench trial held simultaneously with the jury trial, the Honorable Richard B. Austin presiding.
The trial continued for one month. The two jury defendants were found guilty. Of the eight defendants tried by the court, one changed his plea to guilty early in the trial, two were found not guilty and the remaining five, including appellants, were found guilty.
Appellant Nirvana Zuideveld was sentenced to a term of one year and one day, of which all but thirty days to be served in a jail-type institution was suspended. She was placed on probation for a period of two years following service of the jail sentence.
Appellant Jack Zuideveld was sentenced to a term of one year and one day, of which all but five months to be served in a jail-type institution was suspended. He was placed on probation for a period of two years following service of the jail sentence.
Only the Zuidevelds have appealed their convictions. Their separate appeals were ordered consolidated and will be considered together in this opinion.
The basic errors relied on for reversal, and the contested issues arising therefrom, may be summarized as follows: (1) whether there was sufficient evidence to warrant the trial court's finding that the charged conspiracy and appellants' participation therein was proved beyond a reasonable doubt; (2) whether the evidence was sufficient to establish a single conspiracy as distinct from multiple separate conspiracies; (3) whether the trial court prejudicially erred in refusing to dismiss the indictment and suppress certain documentary evidence; (4) whether by this conviction appellants were prejudicially denied rights under the First Amendment to the Constitution of the United States; and (5) whether the trial court prejudicially abused its discretion in denying appellant's request to subpoena certain witnesses at government expense.
Appellants were married and resided in Oak Park, Illinois during the events concerned in this case. Jack had been a radio announcer and a writer. Nirvana had experience as a commercial artist.
In the spring of 1959, Jack was employed by Victory Printing and Publishing Company in Chicago, Illinois to edit its two publications, "Vim" and "Gym" magazines. In August, 1959, he obtained publishing rights to these magazines which he transferred to Nirvack Publishing Company, a corporation principally owned by his wife and one Chester Steel. Thereafter, Jack performed as editor of the magazines and assumed full responsibility for their content. They were sold on newsstands and sent through the mails.
Vim and Gym magazines were claimed by appellants to be designed to appeal to males interested in physical culture and sporting events. Some of the contents were not of a sexual nature. However, it is undisputed that much of the material therein, photographs and articles, carried a double entendre intent. Several articles dealt frankly with the subject of homosexuality. It must be admitted that the dominant theme of the magazines was to appeal to the interest of the homosexual male. Jack was the creator and author of some of the homosexual material printed in them. We shall not further describe their subject matter.
These magazines are protected in their homosexual content by the standards applied by the Supreme Court in Manual Enterprises v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962); One, Incorporated v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2 L. Ed. 2d 352 (1958); and Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). It is not contended here that the magazines were legally obscene and the issue of obscenity is not before us for decision. However, the magazines and their character are relevant to the scheme under scrutiny in this appeal.
While Jack was editing the magazines for Victory Printing in the spring of 1959, Nirvana was studying the file of correspondence from readers. She suggested to her husband that it would be a good idea to organize a correspondence club in order that readers of the magazines with similar interests could exchange information. This was mentioned to the publisher, who rejected the plan. However, he stated to appellants that if they desired to proceed with it they could have a page of advertising in the magazines if Nirvana would do the art work for the publications. Appellants accepted this proposal.
Thus was born the pen pal club to be known as "The Adonis Male Club." The club commenced operation through publication of advertisements in Vim and Gym in June, 1959 and in a number of subsequent issues. The Adonis Male Club was flourishing by late summer of 1959.
The format and content of the advertisement soliciting applications for membership in "a pen pal club for MALES ONLY" was obviously designed to attract the attention of homosexual males. It was prepared by Nirvana. The terms represented in substance that in exchange for a $5.00 membership fee, the applicant, upon being accepted for membership in The Adonis Male Club, would receive the name of a new male pen pal every month for a year. Such names would be "mailed in a plain envelope." The applicant was requested to choose the categories of correspondents from a list of sixteen printed as a part of the application blank. These ranged in variety from male models to truck drivers.
Through the proposed club membership, prospects were invited to "exchange body building photographs - relate interesting, personal experiences, get true enjoyment from swapping fascinating stories with males of unusual occupations and avocational pursuits."
A form of membership application was printed at the bottom of the advertisement. It was to be returned to International Body Culture Association, 546 N. Harvey, Oak Park, Illinois. There were blank spaces for the applicant to fill in his name, address, age, occupation, hobby, height, weight and measurements.
In developing the club, Nirvana assumed the legally registered names of "The Adonis Male Club" and "International Body Culture Association." All mailings from the club were signed by her as "Ed Nolan." She explained that she thought it would be inappropriate to use a woman's name in a male pen pal club. The business of the club and the magazines Vim and Gym (after they were taken over by appellants) were all carried on at appellants' residence in Oak Park.
The club received 650 membership applications. There is no showing that any were rejected. Correspondence was handled by Nirvana, assisted at times by Jack. She operated the club until November, 1959, when she became ill and then Jack began to help her. By the spring and summer of 1960, a substantial number of the members were renewing their memberships in the club.
Appellants published and sold a "membership only" year book containing descriptions and some pictures of club members. For a fee, members could obtain the name and address of a member described in the year book. The year book sold for $20.00 per copy.
She advertised in the March, 1960 issue of Gym that a sketch book showing "action sketches" would be offered for sale to members. She contemplated a newsletter for club members. She considered organizing a summer camp for members to be operated by her husband. She received deposits for the summer camp from about 25 members. However, the plans for the ...