Justia Federal District Court Opinions

Stanley Fleishman (argued), Sam Rosenwein, Hollywood, Cal., for defendants-appellants.

Larry E. Butcher, Atty. (argued), Harry D. Steward, U. S. Atty., John L. Murphy, Chief, Government Regulations Section, Criminal Div., Donald H. Feige, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before BARNES and JERTBERG, Circuit Judges, and EAST,* District Judge.

OPINION

EAST, District Judge:

STATEMENT OF THE CASE

On March 5, 1971, the Grand Jury for the Southern District of California indicted the above-named defendants, William L. Hamling (Hamling), Earl Kemp (Kemp), Shirley R. Wright (Wright), David L. Thomas (Thomas), Reed Enterprises, Inc. (Reed), Library Service, Inc., (Library), the appellants, and Greenleaf Classics, Inc. (Greenleaf), on 21 counts of alleged violation of Title 18 U.S.C. Sections 2, 371 and 1461.

Count 1 charged the defendants and various other unindicted co-conspirators with conspiring to cause to be delivered by mail obscene advertisements (Brochure), obscene books (Report) and advertisements giving information as to where, how and from whom and by what means the Report might be obtained. (Sections 2, 371 and 1461.)

Counts 2 through 14 charged the defendants with the knowing use of the mails for the carriage and delivery of the Brochure alleged to be a certain obscene, lewd, lascivious, indecent, filthy and vile advertisement to a named postal patron. (Sections 2 and 1461.)

Counts 15 through 18 charged the defendants with the knowing use of the mails for the carriage and delivery to a named postal patron of the Brochure giving information where, how, from whom and by what means the Report alleged to be an obscene, lewd, lascivious, indecent, filthy and vile book entitled "The Illustrated Presidential Report of the Commission on Obscenity and Pornography" might be obtained. (Sections 2 and 1461.)

Counts 19 through 21 charged the defendants with the mailing of the Report.

Pre-trial Motions:

The appellants and Greenleaf moved:

a) To dismiss the indictment because it failed to inform them of the nature and cause of the charges in violation of the Fifth and Sixth Amendments to the United States Constitution. This motion was denied.

b) For a Bill of Particulars. This motion was, except for a continuing order requiring the government to answer certain requests of the defendants and for discovery and inspection theretofore ordered, denied. The inspection ordered provided, inter alia, that "All available exhibits to be used in the prosecution of this matter will be pre-marked at pre-trial October 6, 1971, and made available to defendants for inspection. Failure to pre-mark available exhibits prior to the date of trial will result in their exclusion by the court at time of trial."

c) To dismiss the Indictment because no evidence was presented to the Grand Jury which would justify a finding, based on reason, that the publications named in the Indictment were obscene. The motion was denied and there followed a petition to this court for a Writ of Mandamus number 71-2550 which was denied. Whereupon the motion to dismiss was renewed because the government had improperly invited the Grand Jury to return the Indictment "by passion and prejudice" and in "total absence of evidence with regard to obscenity." In support of this motion, the defendants called the government's counsel as a witness to relate the evidence produced and procedure followed before the Grand Jury. The motion as renewed was denied.

d) To challenge the petit jury panel and to strike the venire because the jury plan systematically excluded all persons under 25 years of age. The Clerk of the court was called as a witness and testified that the master wheel from which appellants' trial jury would be drawn was filled in 1968 with the names of persons who were registered voters at that time, and that the procedures followed in selecting the names of the registered voters were in accordance with the District Court's plan.

The defendants produced evidence which they claim tended to establish that:

1. Young persons were a cognizable group and were more tolerant than older persons in matters pertaining to the depiction of sexually explicit material; and

2. The venire contained no persons with an age below 24 years.

The motion was denied.

e) For a month's continuance of the trial awaiting the drawing of a new venire. The motion was denied.

Trial:

The trial commenced on October 15, 1971, and the jury returned its verdict on December 23rd next. At close of the government's case in chief, the trial court dismissed Counts 6, 14, 18 and 20 for a failure of proof. The defendants moved for a judgment of acquittal on the remaining Counts and again at the close of all of the evidence, which motions were denied. After instructing the jury and while the jury remained in the box, the District Court invited counsel to approach the bench for the notation of objections to the instructions. The defendants requested the court to retire the jury and to hear further objections to the instructions. The trial court declined and heard counsel in close conference out of the hearing, but in the presence of the jury.

The jury found the defendant Greenleaf not guilty on the Counts submitted to them, and all of the appellants guilty on Counts 1 through 5 and 7 through 13 (the conspiracy count and the counts charging the obscenity of the Brochure and the mailing of the same.) The jury was deadlocked and unable to reach verdicts on Counts 15, 16, 17, 19 and 21 (the Counts alleging the obscenity of the Report and the mailing thereof). The appellants moved for an arrest of judgment, for a new trial and an acquittal, all of which were denied.

Sentences:

The individual appellants were sentenced to various concurrent and consecutive terms of custody and fines and terms of probation. The corporate appellants were sentenced to fines. The appellants appeal. The individual appellants are at liberty on bail. We affirm.

STATEMENT OF FACTS

We narrate the record evidence as follows: Some of the named postal patrons testified that they received through the mails the challenged Brochure advertising the Report and of their respective reactions upon receipt.

The mailings consisted of an outer envelope, bearing the postmark of North Hollywood, California, dated January 12, 1971, and inner return envelope addressed to Library, Post Office Box 20308, San Diego, California, and the Brochure itself, identifying Library as the mailing party. The outer envelope bore postage affixed by Pitney Bowes meter number 173583 (meter). The actual mailing of the material was made by an independent mailing and addressing service and was a part of a total of 55,000 mailings with affixed postage of the packets. The Brochures, mailing material and the meter had been supplied to the mailing service by a Bernard Lieberman of Regent House, Inc. (Regent), of North Hollywood, California, an unindicted alleged conspirator, which was billed $541.15 by the addressing service for the mailing services.

Regent was the lessee of the meter and had paid, through a Paul Wisner, $3,300 to the United States Postal Service for a setting of that amount of postage on the meter. Regent billed and Reed paid the mailing service charge and postage fees with its check signed by its officer, Hamling.

Kemp and Wright signed Postal Service documents for the rental of Post Office Box 20308 on behalf of Library.

A second Pitney Bowes postage meter was rented by Thomas and installed at Library for use in affixing postage to the mailing packets of the Report to those postal patrons responding to the advertising Brochure.

The individual appellants were responsible staff, policy decision making and operating members of the corporate appellants as distinguished from mere "figureheads" officers and directors of their respective corporations.

The Brochure and the Report, as respectively mailed, were each received in evidence.

The government called two experts for opinion testimony advisory to the jury, a Dr. Melvin Anchell, of Los Angeles, a practicing Medical Doctor and practicing Psychiatrist, who qualified as an expert on prurient appeal, and a Frank Getlein, a columnist with the Washington Evening Star in Washington, D. C., who qualified as an expert on contemporary community standards regarding the depiction of sexual activity, and on redeeming social value of written and pictorial communications. The opinions of these experts in their respective fields on the issue of obscenity vel non of the Brochure and the Report respectively was that the dominant theme of each was "pruriency," each was patently offensive to contemporary community standards, and was utterly without redeeming social value.

The appellants called five experts for opinion testimony advisory to the jury on the same issue of obscenity, a Dr. Otto N. Larsen, one of the Commissioners of the President's Obscenity Commission, who qualified as an expert and author on sociology subjects generally, including topics in mass communication, family sociology, public opinion, propaganda, public attitudes and like subjects, a Dr. W. Cody Wilson, the Executive Director and Director of Research of the President's Obscenity Commission, who qualified as an expert in the field of social relationships and sexually oriented communications and acceptability thereof by persons and groups of persons, a Professor Dwight V. Swain, a Professor of Journalism at the University of Oklahoma, and Dr. Jack Haberstroh, Assistant Professor of Advertising in the Journalism Department at San Diego State College, who each qualified as experts in their respective fields. The opinions of these experts in their respective fields on the issue were that the Report with its illustrations had great social value, and four of the experts testified that in their opinion the Brochure had redeeming social value and was not obscene.ASSIGNMENTS OF ERROR AND DISCUSSION

The appellants assert their assignments of error on the part of the District Court in the form of twenty-two separate statements of issue, some of which are overlapping and repetitious. For the purpose of convenience we rearrange, consolidate and renumber the statements of issue in continuity with the proceedings before the Distrist Court as appears in the following discussion.

Issues 1 and 2:

Whether Title 18 United States Code Section 1461, on its face and as construed and applied, violates the free speech, due process and equal protection provisions of the First, Fifth and Sixth Amendments, and the cruel and unusual punishment provisions of the Eighth Amendment, and the right of the People preserved by the Ninth and Tenth Amendments to the United States Constitution; and

Whether appellants were denied rights secured by the Fifth and Sixth Amendments when they were forced to stand trial under a general obscenity statute for conduct not specifically encompassed in the statute and not charged in the Indictment.

Section 1461 proscribes the knowledgable mailing of "every obscene, lewd, lascivious, indecent, filthy or vile matter, thing, device or substance." The appellants urge that the section is unconstitutionally vague in that the words "obscene, lewd, lascivious . . ." are undefined, vague and indefinite. Accordingly, the section on its face is unconstitutional and further that the use of the words in the indictment fails to advise them clearly and distinctly of the charge which they were called upon to defend, and they were required "to go to trial with the chief issues undefined." Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240.

We conclude that these two assignments are without merit. The language of Section 1461 does "not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited." Roth v. United States, 354 U.S. 476, at 491-492, 77 S.Ct. 1304 at 1313, 1 L.Ed.2d 1498 (1957), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). We subscribe to the ruling of the District Court-"An indictment framed in the language of the statute is not indefinite or vague and the use of statutory language in an indictment is sufficient. The word 'knowingly' as set forth in the indictment sufficiently charges knowledge of all the essential facts as relates to the charge against the defendants." Hopkins v. United States, 405 F.2d 770 (9th Cir. 1969).

Furthermore, the liberal pre-trial discovery and inspection ordered by the District Court and complied with by the government fully and completely advised the appellants of the chief contentions of the government and the materials relied upon.

Issue 3:

Whether the Indictment was returned in violation of the First and Fifth Amendments because:

a) the Grand Jury was not presented with any evidence on any of the essential elements of the offense charged;

b) Government counsel made biased and prejudiced remarks before the indicting Grand Jury.

This assignment is predicated upon the testimony of Larry Butcher, the government attorney who presented the government's position to the Grand Jury, and the appellants' version of that testimony is as follows-"Butcher advised the Grand Jury that they were to be 'guided solely by their instinctive feeling . . .'; that they were to be guided by the standards of 'moral judgment' which they had 'assimilated through the totality of their experiences' . . . also, they were 'the sole judges of the contemporary community standards of this country'; that the term 'contemporary community standards' refers to 'the average conscience of the time.'

"Butcher repeated, under oath, that he had presented no evidence on community standards, prurient interest or social value to the Grand Jury.

"Although Butcher was not sworn as a witness before the Grand Jury, he discussed the factual situation in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), placing particular emphasis on a publication involved in Ginzburg; he discussed the extent of the sales of the book involved in the Ginzburg case, and the advertisement involved in that case; he 'drew a parallel' between the Ginzburg case and the case at bar, emphasizing for the Grand Jury that appellants herein mailed out 55,000 circulars. Butcher advised the Grand Jury 'that we felt that the facts in this case were similar enough to those in the Ginzburg case to present [the matter to the Grand Jury] to see if they felt there was probable cause to believe that a Ginzburg-type situation was present in [the case at bar]."'

The appellants failed to recount that the Brochure and the Report were placed into evidence for the Grand Jury. Those materials were sufficient evidence in and of themselves for the Grand Jury to act upon. Ginbzurg, supra at 465, 86 S.Ct. 942. Underhill's Criminal Evidence, Fifth Edition, Section 1878.

"[N]either the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act." Costello v. United States, 350 U.S. 359 at 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Johnson v. United States, 404 F.2d 1069 (9th Cir. 1968) and Wood v. United States, 405 F.2d 423 (9th Cir. 1968), cert. denied, 395 U.S. 912, 89 S.Ct. 1756, 23 L.Ed.2d 224.

The record before us is totally lacking of any evidence or showing of any kind that any member of the Grand Jury was biased or prejudiced in any degree against any of the appellants, except only a supposition as to how the members may have reacted upon a view of the Brochure and Report. The presumption of regularity which attaches to Grand Jury proceedings still abides. Vuckson v. United States, 354 F.2d 918 at 921 (9th Cir. 1966), cert. denied, 384 U.S. 991, 86 S.Ct. 1896, 16 L.Ed.2d 1007 and the assignment has no merit.

Issue 4:

Whether appellants were denied due process of law when the trial court refused to grant a short continuance which would have afforded appellants a more representative trial jury, after it was established that young people were systematically excluded from appellants' trial panel and the Clerk was about to correct the said exclusion.

The record discloses that the Judges of the United States District Court for the Southern District of California had theretofore adopted a duly approved plan for the refilling of the master jury wheel at specified times, pursuant to Title 28 Section 1863(b)(4). The master jury wheel in question was refilled in accordance with that plan in 1968, and the venire now under attack was drawn by lot from that wheel.

It is gleaned from the testimony of the Clerk called by the appellants that the plan requires the drawing of names of persons for prospective jury service from the registered voters of a given area. It follows, therefore, that the youngest person drawn would be in his 21st year of age and that the youngest person on the venire would be in his 24th year. In fact there were a few persons on the venire of that age.

The appellants claim that persons, 18-24 years of age, represent a distinct cognizable class or group. We assume, likened to "religion, . . . national origin, or economic status" as used in Title 28 U.S.C. Section 1862. In view of the demonstrated fact of ultimately having a most discerning trial jury, the appellants argue, in rather poor taste, that they have "been condemned and branded as felons for having mailed a brochure dealing with sex, by a jury consisting of older persons." They argue that "Since the venire from which appellants' jury was chosen was concededly biased, i. e., young persons were systematically excluded, and since it was established that the young people were more likely to look favorably upon appellants' cause than older persons it was a denial of due process to force appellants to trial before such a jury."

While the authorities are in conflict as to whether the "young" do constitute a cognizable group or class, we will assume, without deciding, that they do. Nevertheless, the appellants have failed to show, let alone establish, a purposeful systematic exclusion of the members of that class whose names, but for such systematic exclusion would otherwise be selected for the master jury wheel in accordance with the court's plan. Whitus v. Georgia, 385 U.S. 545 at 551, 87 S.Ct. 643, 17 L.Ed.2d 599 (1966). The court in United States v. Butera, 420 F.2d 564 (1st Cir. 1970), dealt with a similar contention and recognizes that the young 21-34 years of age do constitute a cognizable class. However, the apparent underrepresentation of "the young" in juror pools was justified in view of the transience of young people and their commitments to education and military service. See United States v. Parker, 428 F.2d 488 (9th Cir. 1970) upholding the validity of the jury wheel in question.

The fact of a lower percentage of young persons on the jury than the percentage in the local population in and of itself is not a satisfactory showing of a purposeful exclusion. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). The known propensity of younger persons, who are eligible to vote, not to register may well be the self-inflicted exclusion from jury service of which the appellants complain.

It thus becomes manifest that the motion for a continuance was without legal grounds, i. e., "to correct the said exclusion." The appellants' hope for a larger percentage of young persons on the next go around does not enjoy constitutional guaranty, nor was the District Court's declination to join in that hope an abuse of judicial discretion in denial of the continuance. Torres v. United States, 270 F.2d 252, at 254 (9th Cir. 1959). We conclude the assignment has no merit.

Issue 5:

Whether appellants were denied due process of law when the trial court refused to ask prospective jurors questions on voir dire designed to expose their biases and prejudices concerning "obscenity" and sex.

We have reviewed the transcript of the District Court's examination on the voir dire of the prospective jurors and conclude that the same was full, complete and imminently fair to the appellants as contemplated by Rule 24(a), Federal Rules of Criminal Procedure, and the holdings of this court as late as United States v. Peterson, et al., 9 Cir. 475 F.2d 806 p. 812, 1973. The appellants submitted over 130 separate questions to be placed to the jurors. The District Court asked many of the questions as submitted, many in altered and consolidated form, and declined to ask many others which were cumulative and argumentative. The handling of those questions not asked was clearly within the range of the District Court's discretion in the matter and no clear abuse of the discretion nor prejudice to the appellants has been shown. It is of interest to note that no claim of jury contamination through pretrial publicity, local prejudice, or general attitudes, is asserted here. Accordingly, the appellants' reliance upon Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968) and the race and religion cases is ill placed. The assignment is without merit.Issues 6 and 7:

Whether the Brochure at bar is protected by the free speech and press provisions of the First Amendment to the United States Constitution, because it fairly and accurately advertises an important book, entitled to First Amendment protection; and

Whether the Government failed to produce the clear and convincing proof constitutionally required to remove presumptively protected publications from the shelter of the First Amendment.

These two designations interwoven and can be conveniently dealt with together. The appellants argue that since the jury did not find the Report itself obscene, it is protected by the free speech and press provisions and further that since the Brochure is a fair and accurate advertisement (a pictorial story to buy) for a constitutionally protected book it is itself protected by the First Amendment. The premise is false. The jury made no finding on the charged obscenity of the Report. If there be a presumption of the protection of the Report then a query of the bona fides of the Brochure as a protected advertisement is in order. Appellants urge that the right to advertise a book is, of course, an essential link in the whole chain of communications which make freedom of the press a reality. New York Times Co. v. Sullivan, 376 U.S. 254 at 266, 84 S.Ct. 710, 11 L.Ed.2d 686, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.

Specifically the appellants cite us United States v. Pellegrino, 467 F.2d 41 (9th Cir. 1972). Pellegrino tells us that the advertised book was entitled "'Woman: Her Sexual Variations and Functions.' It was represented to be over two hundred pages profusely illustrated in a deluxe vinyl edition, selling only by mail order at $14.95.

"It was purportedly edited by a doctor of medicine and was described as 'a complete photo-guide of female sex response.' The advertisement was a brochure in color, folded to provide twelve pages of photographic and printed matter. It contained several explicit color photographs of female genitalia taken from the book itself.⁴ These illustrations, however, are not presented as the 'feast-your-eyes-on' type of pornographic entertainment that this court encountered and described in Miller v. United States, 431 F.2d 655 (9th Cir. 1970) . . . Rather they are presented as illustrating various aspects of the book's claimed contributions to general knowledge representing the functions and characteristics of female sexual organs." Pellegrino ends with the conclusion that the brochure material was not obscene as a matter of law.

The footnote 4 advises us that "The brochure does not contain portrayals of explicit sexual activity between persons. Compare United States v. Young, 465 F.2d 1096 (9th Cir. 1972);" and others.

Unlike the situation in Pellegrino, the advertised Report as well as the advertising Brochure are under charge of obscenity. While we are not dealing with the charges against the Report on this appeal it is considered necessary to place it in some context with the Brochure. The Report was developed around the public domain work entitled The Report of the Commission on Obscenity and Pornography, an official government document printed by the United States government printing office. The major difference between the Commission Report and the Report is the illustrations. The copyright page of the Report contains the following explanation concerning its pictures:

"The Commission Report was not illustrated; the publishers have included the illustrative material as examples of the type of subject matter discussed and the type of material shown to persons who were part of the research projects engaged in for the Commission as basis for their Report."

Again, unlike the nature of the Pellegrino brochure, the portrayals in the Brochure here are not accompanied by any text and do not purport to be related to any written material in the report.

We narrate the Brochure as follows:

The Brochure is a single 11 by 14 inch sheet folded once. One side of the outside fold bears a color facsimile of the Report's cover with these printed words:

A GREENLEAF CLASSIC GP555 ADULT READING $12.50 THE ALL-AMERICAN COP-OUT

THE ILLUSTRATED PRESIDENTIAL REPORT OF THE COMMISSION ON

OBSCENITY AND PORNOGRAPHY

* * *

THE COMPLETE TEXT

* * *

LIBRARY SERVICE, INC.

San Diego, California 92120

The second big printing of this book is now off the press and a major nationwide advertising campaign is underway. The list price is $12.50 per copy, postpaid.

Please return the coupon below, with your remittance, in the enclosed selfaddressed envelope.

Please send..... copies. Enclosed is my check or money order in the amount of $....... ($12.50 each).