# United States v. William Groner, D/B/A Lucky Distributors

> Court of Appeals for the Fifth Circuit · May 22, 1973 · 479 F.2d 577

URL: https://www.frixlaw.com/law-library/cases/9459548

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, D/B/A Lucky Distributors, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 22, 1973
- **Citations:** 479 F.2d 577; 1973 U.S. App. LEXIS 9811
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Brown, Wisdom, Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth, Godbold, Dyer, Simpson, Morgan, Clark, Ingraham, Roney
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Groner v. United States, 414 U.S. 969 (1973).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459548

## Opinion text

CLARK, Circuit Judge
(concurring):
There is nothing of substance I could add to the much too much that has been written in this field of the law. The principal purpose of this opinion is to confess error in concurring in the original panel reversal of this cause. I am now sure that a rule requiring expert opinion evidence in obscenity cases is not required by precedent, is wrong, and would compound rather than solve any problem in this bewildering area. I find the logic of Part II of Judge Gewin’s en banc opinion and Judge Ainsworth’s concurrence therein to be compelling. 1 I do, however, adhere to my view that Judge Thornberry correctly distilled the essence of Roth in the three part test which he originally enunciated and that this test is still viable. Therefore I do not concur in Part I of Judge Gewin’s en banc opinion.
Subsequent events have made it apparent that our panel erred in assuming it to be settled law that the trial judge correctly instructed the jury to apply a nationwide standard. At this term the Supreme Court has heard argument on this geographical issue in Kaplan v. California, No. 71-1422, see 12 Crim.L.Rep. 4053-4055, and the outcome remains open. 2 But the ultimate resolution of this question does not control my judgment that Groner’s case was free of error. Since the jury was instructed on the more inclusive standard, the verdict would still be secure if it turns out that the narrower, local community standard should have been applied.
A properly instructed jury found Groner violated 18 U.S.C. § 1462 because it found that the materials he caused to be transported in interstate commerce were lewd despite the expert testimony he offered that they were not. While the First Amendment does not protect obscenity, it does trigger a unique form of reexamination of the jury’s verdict at the appellate level. Having examined the materials as required, I am no more impressed with the sophistical opinions expressed by Groner’s experts as to its *589 nonprurience than were the nisi prius triers of fact. Other juries and other judges may have differed in their appraisal of similar publications in other proceedings; but now being required to reach the merits of the verdict here, I sustain it without the slightest hesitation. Whoever applies the adage “evil lies in the eye of the beholder” to this smut either deceives himself or disagrees with the rule of Roth. Recondite, abstract First Amendment reasoning may becloud but cannot conceal from one who views them the plain truth that these “books” were produced and purveyed purely as pornography — res ipsa loquitur, 3 The judgment of conviction was correct and is due to be affirmed.
. This position is reached after full consideration of Judge Coffin’s scholarly opinion and Judge Aldrich’s intriguing dissent in United States v. Palladino, 475 F.2d 65 (1st Cir. 1973).
. Despite the considerable doubts about the use of wholly artificial national standards which were inartfully expressed in my former concurrence and which I still entertain, further study certainly indicates that Judge Thornberry’s panel opinion may be correct in speculating that a national standards test could be applicable. The crime charged here is not only an interstate offense against the national sovereign, but one which can be prosecuted in any one of many districts in many states under the venue provisions of 18 U.S.C. § 3237 (b). The difficulty of choosing, instructing on, and applying some local standard in such a situation is apparent.
. Perhaps someone who disagrees can take up the gauntlet by picking some paragraph — any paragraph — from the pages of one of these “books” and demonstrating that it contains that necessary minimum single iota of redeeming social value. I cannot.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459548. Public record. Not legal advice.