Petition — Thevis v. United States

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Fjii.ED S sy

: pred

MAY 3 1976

IN THE

Supreme Court of the United States

OCTOBER a+ 1975

NO. 65-1600

MICHAEL G. THEVIS, THE BOOK BIN,

INC. and PENDULUM BOOKS, INC..,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT EUGENE SMITH, Esquire

GILBERT H. DEITCH, Esquire

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890

Attorneys for Petitioners.

. ee

The Paul M. Harrod Company, Baltimore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

Se CS. en et cent aacndaeeseeueessens tees 604s ‘

Jurisdiction

Questions

Constitutional and Statutory Provisions Involved

Statement

Se cee ae SP aa og eae EA

Reasons for Granting the Writ:—

I.

The sentence imposed upon Petitioner

Thevis, when considered in conjunction

with a further sentence imposed upon said

Petitioner in the Eastern District of

Louisiana with which sentence the

sentence herein is to run consecutively,

constitutes cruel and unusual punishment

in violation of the Eighth Amendment to

the Constitution of the United States, and

is further a reviewable abuse of discretion

if 5 ¢ Bese Meanie

The evidence in the record is insufficient

as a matter of law to establish the

element of scienter as to Petitioner Thevis

so as to meet the minimum constitutional

standards for scienter, enunciated in

Hamling v. United States, 418 U.S. 87 (1974). .15

The publications charged against

Petitioners are not obscene in_ the

ii

Page

constitutional sense as a matter of law and

are thus protected expression under the

First Amendment to the Constitution of

i ee ee ee beach eee ee 20

SSP PLEO CEE MOET LT YT TEC TTT CCT CT ie 24

CE PT oe 6 che ee ee tes scene cenensewoues l

RO TE nn cs ch cee tee eceseencaseeseesess 10

TABLE OF AUTHORITIES

Cases

Aday v. United States, 388 U.S. 447 (1967) ......... 22

Boyce Motor Lines, Inc. v. United States,

eh ee . ceie ee eee eee sees Onn ee 16

Corinth Publications, Inc. v. Wesberry,

ee aks eee eee ee Oh 22

Dearman v. Woodson, 429 F.2d 1288 (1970) ........ 9,14

Fox v. State of Washington, 236 U.S. 273 ........... 16

Furman v. Georgia, 408 U.S. 238 (1972)........ 7,10,11

Grove Press v. Gerstein, 378 U.S. 577 (1964) ........ 22

Hamling v. United States, 418 U.S. 87 (1974) .... 3,17,19

Hancock v. Avery, 301 F. Supp. 786 (1969) .......... 6

Hart v. Coiner, 483 F.2d 136 (1973) ............. 8,12

Hoyt, et al., v. State of Minnesota, 399 U.S. 524 (1970). 22

Hygrade Provisions Co. v. Sherman, 266 U.S. 497...... 16

In Re Kemmler, 136 U.S. 436 (1890) ............... 6

Jacobellis v. Ohio, 378 U.S. 184 (1964) ............ 20

Jenkins v. Georgia, 418 U.S. 153 (1974) .......... , -20

Jordan v. Fitzharris, 257 F. Supp. 674 (1966) ....... 7,8

rE: BS ySS Cy. Di... eee 8

Louisiana ex rel. Francis v. Resweber, 329 U.S.459 (1947). . 10

Manual Enterprises, Inc., v. Day, 370 U.S. 478 ....... 20

Mazes v. Ohio, 388 U.S. 453 (1967) ............. fr

Memoirs v. Massachusetts, 383 U.S. 143 ............ 22

Miller v. California, 413 U.S. 15 (1973) ........... 9,15

Mishkin v. New York, 383 U.S. 502 (1966).......... 17

ili

Page

Nash v. United States, 299 U.S. 373 ............... 16

O’Neil v. Vermont, 144 U.S. 323 (1892) ............ 1]

Pinkus v. California, 400 U.S. 922 (1970) ........... 22

Redding v. Pate, 220 F.Supp. 124 (1963) ............ 6

Redrup v. New York, 386 U.S. 767 (1967) ...... 9,15,21

Robinson v. California, 270 U.S. 660 (1962) ........ 8,13

Roth v. United States, 354 U.S. 476 (1957) ......... 16

Rudolph v. Alabama, 375 U.S. 889 (1963) ........... 8

Smith v. Califnornia, 361 U.S. 147 (1959)........... 16

Trop v. Dulles, 356 U.S. 86 (1958) .............. 7,10

United States v. Harris, 347 U.S. 612, 624 n. 15 ...... 16

United States v. Petrillo, 332 U.S. 1, 7-8 ............ 16

United States v. Ragen, 314 U.S. 513, 523-524 ....... 16

United States v. Wurzbach, 280 U.S. 396 ........... 16

Weems v. United States, 217 U.S.349 (1910) . . 7,8,10,11,13

Wright v. McMann, 397 F. 2d 519 (1967) ............ 6

Constitution and Statutes

Unites States Constitution

EE a 3,15,16,17

GD aE eh er ae Re 3

amen MOONE . ww ct cece 2,3,6,7,10,11

Title 18, United States Code, Section 1461 ........... 4

IN THF

Supreme Court of the United States

OCTOBER TERM, 1975

NO.

MICHAEL G. THEVIS, THE BOOK BIN,

INC. and PENDULUM BOOKS, INC.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit entered in the

above case on February 6, 1976.

2

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is as yet unreported; a copy of said

opinion is set forth in Appendix “A’’ hereto.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on February 6, 1976. A

Petition for Rehearing was timely filed and was denied on

March 3, 1976. A copy of the Order denying the Petition

for Rehearing is set forth in Appendix “B” hereto. On

March 22, 1976, Mr. Justice Powell granted an extension of

time to and including May 2, 1976 within which to file this

Petition.

This Court’s jurisdiction is invoked under Title 28,

United States Code §1254(1).

QUESTIONS PRESENTED

1. Does the sentence imposed upon Petitioner Thevis,

when considered in conjunction with a further sentence

imposed upon said Petitioner in the Eastern District of

Louisiana with which sentence the sentence herein is to run

consecutively, constitute cruel and unusual j,unishment in

violation of the Eighth Amendment to the Constitution of

the United States, and is it further a reviewable abuse of

discretion by the District Court?

2. Is the evidence in the record insufficient as a matter

of law to establish the element of scienter as to Petitioner

3

Thevis so as to meet the minimum constitutional standards

for scienter enunciated in Hamling yv. United States, 418

U.S. 87 (1974)?

3. Are the publications charged against Petitioners not

obscene in the constitutional sense as a matter of law and

thus protected expression under the First Amendment to

the Constitution of the United States?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The First Amendment to the United States

Constitution provides:

“Congress shall make no law... abridging

freedom of speech or of the press.”

The Fifth Amendment to the United States

Constitution provides:

““No person shall... be deprived of life, liberty, or

property without due process of law.”

The Eighth Amendment to the United States

Constitution provides:

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel or unusual punishment

inflicted.”

4

STATEMENT

The Petitioner herein, along with another Defendant

who was acquitted, were tried in the United States District

Court for the Northern District of Georgia on several

charges of using the mails for the transportation of obscene

materials in violation of Title 18, United States Code

§ 1461. After a jury trial, the Petitioners were convicted as

to all acounts on November 11, 1971.

The convictions were predicated upon use of the mails

for the transportation of the following publications: (1) an

advertising circular entitled “More Outstanding Book

Bargains from Pendulum;” (2) a book entitled “Marital

Confidences;” (3) a book entitled “Cruel Lips;” (4) three

advertising circulars entitled “Fine Pendulum Magazines for

the Connoisseur;” (5) an advertising circular entitled “Spring

Book Bonanza from the Book Bin;” (6) a magazine entitled

“The Wild Cats; (7) a magazine entitled “Lezo;” (8) a

magazine entitled “Body and Soul;” (9) a magazine entitled

““Swap;” and (10) a book entitled “Indictments.”

After the convictior, all Petitioners filed motions for

acquittal, arrest of judgment, and new trial. All of said

motions were denied by the District Court. The corporate

petitioners were sentenced to fines totalling $30,000.

Petitioner Thevis was sentenced to a fine of $45,000 and to

a three-year term of imprisonment. Said term was specified

to run consecutively with a five-year term of imprisonment

previously imposed in a Federal obscenity prosecution in the

Eastern District of Louisiana.

5

The distributions of allegedly obscene material which

from the basis for the convictions below occurred between

December of 1967 and August of 1969. Petitioner Thevis,

prior to the conviction below, was convicted in the United

States District Court for the Eastern District of Louisiana

on a charge arising from the interstate shipment of allegedly

obscene publications during virtually the same time period.

That conviction was predicated upon distributions which

occurred during the months of February, March and April

of 1970. Thus, when read on conjunction, the two

convictions deal with activity from late 1967 through early

1970, a period during which the constitutional validity of

obscenity regulations was in serious doubt. Despite this, the

convictions have precipitated sentences totalling eight years

of imprisonment for Petitioner Thevis.

The conviction below was appealed to the United

States Court of Appeals for the Fifth Circuit which affirmed

in part and reversed in part. Since the conduct upon which

the conviction was predicated occurred from 1967 through

1969, the Court of Appeals reviewed the materials under

both the Roth-Memoirs standards and the Miller standards

for judging obscenity. The magazine entitled “The Wild

Cats” and the magazine entitled “Lezo” were found to

constitute protected speech and the conviction predicated

upon their distribution was reversed. The Court of Appeals

affirmed the District Court judgment as to all other counts

in a judgment and opinion for which review is sought here.

6

REASONS FOR GRANTING THE WRIT

THE SENTENCE IMPOSED UPON PETITIONER

THEVIS, WHEN CONSIDERED IN

CONJUNCTION WITH A FURTHER SENTENCE

IMPOSED UPON SAID PETITIONER IN THE

EASTERN DISTRICT OF LOUISIANA WITH

WHICH SENTENCE THE SENTENCE HEREIN IS

TO RUN CONSECUTIVELY, CONSTITUTES

CRUEL AND UNUSUAL PUNISHMENT IN

VIOLATION OF THE EIGHTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES,

AND IS FURTHER A REVIEWABLE ABUSE OF

DISCRETION BY THE DISTRICT COURT.

The Eighth Amendment to the Constitution of the

United States provides, inter alia, that “cruel and unusual

punishments [shall not be] inflicted.” It must first be noted

that cruel and unusual punishment, as a _ constitutional

concept, is a principle which has not been found susceptible

to precise definition. Jn Re Kemmler, 136 U.S. 436 (1890);

Wright v. McMann, 397 F.2d 519 (2nd Cir. 1967); Hancock

vy. Avery, 301 F.Supp. 786 (M.D. Tenn. 1969); Redding v.

Pate, 220 F.Supp. 124 (N.D. Ill. 1963).

As early as the nineteenth century, this Court

acknowledged that:

“Difficulty would attend the effort to define with

exactness the extent of the constitutional provision

which provides that cruel and unusual punishment

shall not be inflicted....” Wilkerson v. Utah, 99

U.S. 130, 135-36 (1878).

This continuing uncertainty was again underscored by the

Court in Weems vy. United States, 217 U.S. 349 (1910).

There it was stated: “What constitutes a cruel and unusual

punishment has not been exactly decided.” id., at 368. The

uncertainty continues to this present day; it has been said

that the statement in Weems “is as true today as it was in

1910.” Jordan y. Fitzharris, 257 F.Supp. 674 (N.D. Cal.

1966). See also Trop v. Dulles, 356 U.S. 86 (1958).

It is further true that the Eighth Amendment's

proscription of the infliction of punishments which can be

designated as cruel and unusual is one of ancient derivation.

The phrase appeared in the English Bill of Rights of

December 16, 1689, and even earlier antecedents can be

found in the Magna Carta. IV Blackstone, Commentaries at

379. The Amendment's proscription, however, is not

grounded solely in ancient concepts of what is cruel and

unusual. The test is always a modern one, since the

judgment as to what is cruel and unusual must be made in

light of “developing concepts of elemental decency.” Weems

vy. United States, supra, at 378; Jordan v. Fitzharris, supra,

at 679. In this connection the Supreme Court noted in

Weems that:

““A principle, to be vital, must be capable of wider

application than the mischief which gave it birth.

This is peculiarly true of constitutions.”” 217 U.S.

at 373.

See also Furman v. Georgia, 408 U.S. 238 (1972).

8

Despite the necessary imprecision in definition and the

constantly changing nature attending the evolution of the

Amendment's meaning, certain broad principles underlying

the proscription of cruel and unusual punishments can be

articulated. In general, it is possible to identify three broad

approaches to the question. Jordan vy. Fitzharris, supra, at

679, quoting Rudolph v. Alabama, 375 U.S. 889, 890-91

(1963) (Goldburg, J., dissenting).

The initial approach involves a decision as to whether,

under all the circumstances, the punishment in question is

of such character “tas to shock the general conscience or to

be intolerable to fundamental fairness.” Lee v. Tahash, 352

F.2d 970, 972 (8th Cir. 1965). This judgment must, of

course, be made in light of current concepts of elemental

decency. Weems vy. United States, supra; Trop v. Dulles,

supra; Rudolph v. Alabama, supra.

Secondly, it must be asked whether the punishment,

under all the circumstances, is greatly disproportionate to

the offense for which it is imposed. Weems v. United States,

supra; Robinson vy. California, 370 U.S. 660, 676 (1962)

(Douglas, J., concurring); Hart vy. Coiner, 483 F.2d 136 (4th

Cir. 1973), cert. denied, 415 U.S. 938 (1974).

Lastly, it must be asked whether the punishment,

although applied in pursuit of a legitimate penal aim,

exceeds what is necessary to achieve that aim. Weems y.

United States, supra; Robinson vy. California, supra; Rudolph

v. Alabama, supra. As the Tenth Circuit Court of Appeals

has stated:

“We think it beyond dispute that a purushment

may be cruel and unusual when, although applied

9

in pursuit of legitimate penal aims, it goes beyond

what is necessary to achieve those aims.” Dearman

v. Woodson, 429 F.2d 1288, 1290 (10th Cir.

1970).

The punishment inflicted upon Petitioner Thevis in this

case fails to pass constitutional muster under any of the

tests enunciated above.

As to the first test, it can be seen that eight years of

imprisonment, in light of the offense, surely:

“offends concepts of decency and human dignity

and precepts of civilization which Americans

profess to possess... [and] it violates

fundamental standards of good conscience and

fairness.” Holt v. Sarver, 300 F. Supp. 825, 827

(E.D. Ark. 1969).

The punishment here, it must be remembered, is inflicted

upon a man who merely engaged in the dissemination of

printed matter. The dissemination, moreover, occurred

during what was then known as the ‘“Redrup era.” See

Redrup v. New York, 387 U.S. 767 (1967). During that era

disseminators of sexual materials placed reasonable reliance

upon the principle that their activities were constitutionally

protected in the absence of sales to minors, intrusions upon

those who did not wish to be exposed, or pandering.

Redrup v. New York, supra.

It is true that subsequent decisions of the Supreme

Court have retreated from the Redrup position. See Miller v.

California, 413 U.S. 15 (1973). But this definite shift in

legal position did not occur until after the conduct which

formed the basis for the instant prosecution. Further, it did

not occur in an atmosphere of simplicity or legal

obviousness.

10

The decision in Miller was as close as any decision of

this Court can be, five votes to four. That decision was

reached after extensive briefing by both sides and the

further benefit of innumerable briefs amicus curiae. The

decision was an agonizing one for this Court even after the

benefit, through briefs, of such extensive legal scholarship.

This briefing, and the benefit of the scholarship it

contained, was unavailable to Petitioner Thevis. Further, the

legal training of the nine Justices in the United States

Supreme Court constitutes an exposure which Michael

Thevis lacked.

In light of that difficulty of decision and in light of

the reasonable reliance upon Redrup era law, the Court

must decide the fundamental fairness of long years of

imprisonment for Petitioner Thevis. The Court must decide

whether common decency’ permits such _ extensive

imprisonment for a man who, without the benefit of the

legal counseling furnished to this Court, acted in accordance

with the conclusions arrived at by four of its members.

It must, of course, be remembered that this test of

what constitutes cruel and unusual punishment “is not

fastened to the obsolete, but may acquire meaning as public

opinion becomes enlightened by a humane justice.” Weems

v, United States, supra, at 378. In other words, the Eighth

Amendment “must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society.” Trop v. Dulles, supra, at 101. See also Furman vy.

Georgia, supra. When so judged, the punishment in this case

must be found to be contrary to the “traditional humanity

of modern anglo-american law.” Louisiana ex rel. Francis v.

Resweber, 329 U.S. 459, 463 (1947).

1]

But by the same principles, the punishment in this case

can be found to be greatly disproportionate to the offense

charged. The principle that an excessive sentence may be

invalid under tiiis constitutional provision solely because of

its disproportionality to the offense charged is an old one.

As early as 1892, Mr. Justice Field suggested that the

Eighth Amendment’s prohibition is directed not only against

torture or barbarism, but that it also prohibits “‘all

punishment which by their excessive length or severity are

greatly disproportioned to the offenses charged.” O'Neil y.

Vermont, 144 U.S. 323, 339 (1892) (Field, J., dissenting).

Mr. Justice Field was joined in that view by Justices Harlan

and Brewer.

While the view in O'Neil was a dissenting one, this

Court in short order came to adopt it as the law. In 1910

the Supreme Court held it to be “a precept of justice that

punishment for crime should be graduated and proportioned

to the offense.””’ Weems v. United States, supra, at 367. The

Court in Weems noted, with apparent approval, the decision

of the Supreme Judicial Court of Massachusetts to the

effect that imprisonment for a long term of years “might be

so disproportionate to the offense as to constitute a cruel

and unusual punishment.” /d, at 368. In Furman vy. Georgia,

supra, Mr. Justice Douglas found the idea of

disproportionality to be rooted in documents as ancient as

the Magna Carta, quoting from it to the effect that:

‘“‘A free man shall not be amerced for a trivial

offense, except in accordance with the degree of

the offense; and for a serious offense he shall be

amerced according to its gravity ....”’ Furman vy.

Georgia, supra, at 243.

12

Disproportionality between the offense and_ the

punishment was the crucial element relied upon by the

Fourth: Circuit Court of Appeals in J/art vr. Cciner, 483

F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 938

(1974). The Court of Appeals in that case held application

of the West Virginia habitual offender statute to be cruel

and unusual punishment in light of the nature of the

underlying offenses which the individual had _ there

committed. Mr. Hart was sentenced, pursuant to a recidivist

statute, to life imprisonment because of his conviction for

three felonies. The first conviction was for writing a bad

check, the second for transporting forged checks, and the

third for perjury.

The Court of Appeals, in holding that Hart’s sentence

was constitutionally impermissible, noted:

“After analyzing what we believe to be the

relevant criteria under the eighth amendment, we

conclude that the sentence imposed upon Hart is

constitutionally excessive and _ wholly

disproportionate to the nature of the offenses he

committed, and not necessary to achieve any

legitimate legislative purpose.” /d. at 143.

The punishment imposed upon Petitioner Thevis must

be found equally disproportionate to the offenses with

which he is charged. It can be conceded that imprisonment

for a term of eight years is not severe in the abstract. But

that, of course, is not the test:

“That the punishment is not severe, ‘in the

abstract,’ is irrelevant; ‘even one day in prison

would be a cruel and unusual punishment for the

crime of having a common cold.’” Furman y.

Georgia, supra, at 273.

13

The Court of Appeals in Hart noted the very

particularized nature of this constitutional attack. In

reference to Hart’s argument that Court noted:

“(Hart] does not urge that life imprisonment per

se is either cruel or unusual. Nor does he urge

that the statutory scheme has been discriminatorily

applied. The issue he does raise is whether the

recidivist mandatory life sentence in this case is so

excessive and disproportionate to the underlying

offenses as to constitute cruel and unusual

punishment.” /d., at 139.

Like the appellant in Hart, Michael Thevis does not

urge that eight years of imprisonment per se is either cruel

or unusual. Nor does he urge that the statutory scheme has

been discriminatorily applied. The issue he does raise is

whether eight years of imprisonment, in this case, is so

excessive and disproportionate to the underlying offenses as

to constitute cruel and unusual punishment. It is

respectfully urged that such a sentence is such an excessive

punishment for the distribution of printed materials in

reasonable reliance upon then prevailing Supreme Court

pronouncements that it must be held to constitute cruel and

unusual punishment.

Lastly. though the punishment in this case may be

found to be in pursuit of legitimate penal aim, it clearly

goes beyond what is necessary to achieve that aim. That such

an excess may make a punishment cruel or unusual was

recognized by this Court in Weems v. United States, supra,

at 370. See also Robinson vy. California, supra, at 677

14

(Douglas, J., concurring). As the Court of Appeals said in

Dearman y. Woodson, 429 F.2d 1288 (10th Cir. 1970):

“Cruel and unusual punishment, as a constitutional

concept, is a principle which has not traditionally

lent itself to precise definition. However, we think

it beyond dispute that a punishment may be cruel

and unusual when, although applied in pursuit of

legitimate penal aims, it goes beyond what is

necessary to achieve those aims.” /d., at 1290.

Conceding the appropriateness of prohibiting and

punishing the distribution of obscene materials, this court

must consider what penal aim is served by massive

punishment for conduct which occurred while the state of

the law was uncertain.

Punishment may serve many ends. The possibility of

punishment, may serve to deter or prevent. crime.

Punishment of imprisonment may serve to_ separate

sociopathic individuals from a society which they may harm.

Imprisonment may also facilitate rehabilitation of such

individuals through strict control over their environment.

Finally, punishment may _ serve the societal goal of

retribution, a concept embodied in the common notion of

making one “pay for one’s sins.”” See ABA, Standards

Relating To Sentencing Alternatives and Procedures

(approved draft, 1968).

The goal of deterence can hardly be effectuated by the

imposition of harsh punishment for acts not determined as

criminal until after their occurrence. The conduct which

formed the basis for the instant prosecution occurred while

the state of the law in the area of obscenity prosecution

15

was guided by the principles enunciated in Redrup v. New

York, supra. The only “crime” here committed was an

incorrect prediction as to the course the Court would later

follow in Miller v. California, supra. Once the state of the

‘law was made clear in Miller, Petitioner Thevis removed

himself from the adult book business. He has shown himself

to be in no need of deterence from violating clear legal

proscriptions, since the acts for which he is incarcerated

were not clearly illegal when they were committed.

Nor has Michael Thevis been shown to be a sociopath

who must be segregated from society and incarcerated for

society’s protection. Finally, whatever retribution is owed

for the acts which formed the basis for this prosecution

must be quantified in light of the uncertain status of the

law at the time they were committed. By any such analysis,

eight years of imprisonment for the distribution of printed

materials at a time when such distribution was colorably

protected by the First Amendment to the United States

Constitution must be viewed as grossly excessive.

THE EVIDENCE IN THE ’ RECORD IS

INSUFFICIENT AS A MATTER OF LAW TO

ESTABLISH THE ELEMENT OF SCIENTER AS

TO PETITIONER THEVIS SO AS TO MEET THE

MINIMUM CONSTITUTIONAL STANDARDS

FOR SCIENTER ENUNCIATED IN HAMLING V.

UNITED STATES, 418 U.S. 87 (1974).

Petitioner Thevis respectfully submits that the record is

completely devoid of any evidence sufficient to predicate a

16

constitutionally acceptable ffinding of scienter. Any

formulation of the principles governing the issue of scienter

in the area of First Amendment litigation must originate

with the decision of this Court in Roth v. United States,

354 U.S. 476 (1957).

In deciding Roth y. United States, the Court stated

that the obscenity statutes there involved and as construed

were not too ambiguous to define a criminal offense. Each

of the cases cited to support this ruling, however, stressed

the fact that the respective statute involved was directed

only at those with guilty knowledge or intent. See, United

States v. Petrillo, 332 U.S. 1, 7-8; United States v. Harris,

347 U.S. 612, 624 n. 15; Boyce Motor Lines, Inc. v. United

States, 342 U.S. 337, 340; United States v. Ragen, 314 U.S.

513, 523-524: United States v. Wurzbach, 280 U.S. 396;

Hygrade Provisions Co. v. Sherman, 266 U.S. 497; Fox vy.

State of Washington, 236 U.S. 273; and Nash vy. United

States, 229 U.S. 373.

The constitutional validity of the obscenity statutes

involved in Roth rested, therefore, in significant measure

upon the understanding that the statutes were not intended

to apply to those who distribute material dealing with sex,

but only to those who had knowledge that the particular

material was of obscene character and content.

The issue finally was resolved by the decision in Smith

v. California, 361 U.S. 147 (1959). It was there held that

the strict liability feature of the California obscenity

ordinance there involved was seriously restricting the

circulation of books which are not obscene, “by penalizing

booksellers, even though they had not the siightest notice of

17

the character of the books they sold”. 361 U.S. at 152.

The tendency of the California ordinance, the Supreme

Court held, was to erode fundamental freedoms of speech

and press by holding a bookseller criminally liable for

possessing an obscene book, “wholly apart from any scienter

on his part regarding the book’s obscenity.” 361 U.S. at

160.

In Mishkin v. New York, 383 U.S. 502 (1966), the

Court stated:

“The Constitution requires proof of scienter to

avoid the hazard of self- censorship of

constitutionally protected material and _ to

compensate for the ambiguities inherent in the

definition of obscenity.”

In approving the authoritative interpretation placed

upon the New York obscenity statute by the highest court

of the State with respect to the “stringent scienter

requirement” and “vital element of scienter”, 383 U.S. at

507, 510 n.5, the Court specifically noted that a

paranthetical reference in the Court of Appeals’ opinion to

“knowledge of the contents of the books” was not to be

read as a “modification of this definition of scienter."’ 383

U.S. at 510 n.9.

The most recent decision of this Court on the

minimum Scienter necessary to satisfy the requirements of

Due Process and the First Amendment in an obscenity

prosecution is Hamling v. United States, 418 U.S. 87

(1974). There, the Court states:

“[Wle think the ‘knowingly’ language of 18

U.S.C. §1462 and the instructions given by the

18

district court in this case satisfy the constitutional

requirements of scienter. It is constitutionally

sufficient that the prosecution show that a

defendant had knowledge of the contents of the

material he distributes, and he knew the character

and nature of the materials.” 418 U.S., at 123

(emphasis added).

Thus, the test, as enunciated in Hamling, was whether

the prosecution shows that a defendant “had knowledge of

the contents of the material he distributed, and he knew

the character and nature of the materials.”” There can be no

question but that the record below is completely devoid of

any such evidence as to Petitioner Thevis.

The record contains the testimony of only three

witnesses relating to the involvement of Michael Thevis, in

the activities of the corporate Petitioners herein, The Book

Bin, Inc. and Pendulum Books, Inc.

The first of those three witnesses is Mr. Grover C.

Reynolds, Business License Inspector for the City of

Atlanta, Georgia. Mr. Reynolds testified only as to a

January 15, 1969 application for a business license for

Pendulum Books, Inc. Said application listed M. G. Thevis

as President of Pendulum Books. This testimony is thus

devoid of any evidence on the issue of scienter as to

Michael Thevis. It shows nothing as to his awareness of the

nature, content, and character of the materials charged as

obscene in the within proceedings.

The second witness testifying on the involvement of

individuals with the corporate Petitioners herein was Mr.

Adrian Arias, Vice President of the National Bank of

19

Georgia, Atlanta, Georgia. Mr. Arias’ testimony was directly

solely to Joan Thevis who was acquitted at trial. Mr. Arias

testified that Joan Thevis, at all times material herein,

signed all of the checks written on the account of Petitioner

Book Bin, Inc. His testimony was in no way related to

Petitioner Thevis.

Lastly, the record contains the testimiony of Mrs.

Wanza L. Spencer who was employed by Peachtree News

Company for a short period of time in the summer of

1969. She testified that she was hired for that employed by

Michael Thevis. Mrs. Spencer was never employed by either

of the corporate Petitioners, and she testified only that said

corporation had officers in the same building with Peachtree

News, the company for which she worked. She testified that

she saw the covers of some of the magazines distributed by

The Book Bin. She testified that she did not see the

contents of any of the magazines, that she had not seen

any of the books distributed by The Book Bin. Mrs.

Spencer offered no testimony as to the any of the kind of

the materials distributed by Pendulum Books, Inc.

It can thus be seen that the record is completely

devoid of any evidence whatsoever going to the issue of

scienter as to the individual defendant Michael George

Thevis. There is no evidence whatsoever, circumstantial or

otherwise, that he had any knowledge whatsoever of the

nature, character, or content of the materials which form

the basis for the prosecution below. Such knowledge was

delineated as the minimum acceptance’ constitutional

standard of scienter in Hamling v. United States, supra. In

the absence of any proof establishing ‘such scienter, the

conviction of the Petitioner Michael Thevis must therefore

be reversed.

20

IIT.

THE PUBLICATIONS CHARGED AGAINST

PETITIONERS ARE NOT OBSCENE IN THE

CONSTITUTIONAL SENSE AS A MATTER OF

LAW AND ARE’ THUS’ PROTECTED

EXPRESSION UNUVER THE FIRST AMENDMENT

TO THE CONSTITUTION OF THE UNITED

STATES. |

The Appellants respectfully request the Court to

perform its judicial duty, enunciated in Jacobellis v. Ohio,

378 U.S. 184 (1964), to determine the obscenity vel non of

the publications charged as obscene in the _ instant

proceedings. On the basis of such an independent review,

the convictions in this case must be reversed. 7

The doctrine necessitating an independent appellate

review of the alleged obscenity of materials found obscene

at the trial level was enunciated by this Court in Jacobellis

v. Ohio, 378 U.S. 184 (1964). The Court there held that its

duty, as an appellate court, “admits of no ‘substitute for

facing up to the tough individual problems of constitutional

judgment involved in every obscenity case’.” /d at 188,

quoting Manual Enterprises. Inc. v. Day, 370 U.S. 478, 488.

The continuing validity of this doctrine and of the

appellate duty it imposes was recently affirmed in Jenkins y.

Georgia, 418 U.S. 153 (1974). In Jenkins, this Court

reversed a state obscenity conviction predicated upon an

exhibition of the iilm “Carnal Knowledge.” The reversal was

based upon the Court’s own viewing of the film, and the

finding that it was nt, as a matter of constitutional law,

obscene.

21

The Petitioners here should be judged as the Fifth

Circuit ruled, by the status of the law on the standards

being applied as of the time of the commission of the

offense — December 1967 through August 1969. Briefly, the

law which was being applied at that time permitted a

certain type of judicial review which has been characterized

as the Redrup v. New York, 386 U.S. 767 (1967),

approach.

In Redrup the Court, in a per curiam opinion, held

that the materials before it could not be said to be obscene

in the constitutional sense. Thereafter, the Court laid down

suggested criteria for balancing the determination of whether

material could be said to be obscene with emphasis on the

manner of dissemination, rather than on the materials

disseminated.

The Court, in essence, suggested that where there was

no evidence of sales to minors under state statutes reflecting

a specific and limited concern for juveniles, nor where there

was any dissemination or attempt at dissemination in a

manner calculated to intrude into the privacy of an

unwilling individual who wanted to avoid confrontation with

this kind of material, or where there was no evidence of

“pandering” that no obscenity conviction or suppression

could follow consistent with the First Amendment.

Thereafter, the Court reversed some thirty-three c..es,

representing a wide cross-section from both federal and state

courts, involving both criminal and civil condemnations, and

the Court, in reversing these cases, cited only as _ its

authority Redrup v. New York, supra.

In any independent review, the past findings of this

Court on the sole issue of obscenity have obvious bearing.

to

tr

In this respect it is important to note that findings of

obscenity have been reversed by this Court as to press

materials devoted entirely to explicit depictions or

descriptions of sexual activities, including detailed and

vernacular descriptions reaching the ultimate in explicitness

as to heterosexual intercourse, masturbation, beastiality,

oral-genital intercourse, sado-masochism, and homosexual

activity. See, e.g., Memoirs v. Massachusetts, 383 U.S. 413

(1966) (“Fanny Hill”); Aday v. United States, 388 U.S. 447

(1967) (“Sex Life of a Cop” described at 357 F.2d 855):

Corinth Publications vy. Westberry, 388 U.S. 448 (1967);

(“Sin Whisper” described at 146 S.E.2d 764); Mazes y.

Ohio, 388 US. 453 (1967) (“Orgy Club”); Hoyr y.

Minnesota, 399 U.S. 524 (1970) (“The Way of a Man with

a Maid,” ‘“‘Lady Susan’s Cruise Lover,” and three other

books); Grove Press yv. Gerstein, 378 U.S. 577 (1964)

(“Tropic of Cancer’).

In the area of motion picture films, this Court has

reversed findings of obscenity as to films which depict

totally nude women; films which depict nude and partially

nude men and women engaged in sexual gyrations, simulated

intercourse, and _ simulated’ oral-genital contact, all

emphasizing pubic and rectal areas; and films depicting

lesbian sexual activity and hetero-sexual activity between

men and women. Moreover, this Court has affirmed a

reversal by the Ninth Circuit Court of Appeals of a finding

of obscenity as to a “stag film depicting a nude woman

masturbating, with emphasis on the female genitalia and

sexual gyrations.” Pinkus v. Pitchess, 429 F.2d 416 (CA 9

1970), affirmed sub nom. Pinkus y. California, 400 U.S. 922

(1970).

23

Thus, the only conclusion which could have been

rationally extrapolated from these decisions without opinion

is that any publication containing exclusively pictorial

material which depicts, graphically and exclusively, nudes in

sexual poses and movement, even without presence of social

importance, is constitutionally protected. Should the pictures

show graphic depiction of sexual acts accompanied by

substantial text material, then requisite social value is present

and thus the material would not be obscene, which is true

in the instant case.

The Court’s attention is directed to an examination of

the materials which form the basis for this prosecution, the

comparable materials admitted in evidence below and the

expert testimony given in evidence below. The press

materials at bar sub judice, when considered as a whole, and

as judged against the evidence and press materials of similar

or more explicit sexual content heretofore determined by

this Court not to be obscene, should thus be held to be

protected speech, and the judgment of the Court below

should be reversed.

In summary, the Court must make an independent

review of the obscenity vel non of the publications charged

herein as obscene. On the basis of such a complete and

independent de novo review, and on the basis of the

evidence elicited below as to the substantive issue of

obscenity, this Court can only conciude that the

publications charged herein, especially when judged against

the standards prevailing at the time of their distribution, are

not obscene. The convictions must therefore be reversed.

24 A. 1

CONCLUSION APPENDIX “A”

Le et eS

For the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit.

UNITED STATES of America,

Plaintiff-Appellee,

Respectfully submitted,

ROBERT EUGENE SMITH, Esquire

GILBERT H. DEITCH, Esquire

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890

Attorneys for Petitioners.

v.

Michael G. THEVIS, The Book Bin,

Inc., and Pendulum Books, Inc.,

Defendants-Appellants.

No. 75—1168

United States Court of Appeals,

Fifth Circuit

Feb. 6, 1976.

Defendants were convicted in the United States District

Court for the Northern District of Georgia, at Atlanta,

Richard C. Freeman, J., of mailing obscene matter, and they

appealed. The Court of Appeals, Bell, Circuit Judge, held

that the sentence imposed on an individual defendant was

not cruel or unusual; that there was sufficient evidence

adduced in the trial court to show scienter; and that, while

all of the materials in question were obscene under Miller

standards, one magazine was protected under the Memoirs

standards by inclusion, in significant proportions, of a

serious discussion of female homosexuality.

Affirmed in part and reversed in part.

1. Criminal Law 1213

Because Miller standards of obscenity, standards well

known at time of defendant’s actions, were applied in

prosecution for mailing obscene matter, there was no force

to argument that sentences of three years’ imprisonment on

three counts to be served concurrently but consecutively to

A. 2

another five-year term imposed in another prosecution were

cruel and unusual because actions in question § were

undertaken during period of uncertainty in law of obscenity

and bona fide attempts were made to anticipate Supreme

Court’s position. 18 U.S.C.A. §1461: U.S.C.A.Const.

Amend. 8.

2. Criminal Law 1213

In construing cruel and unusual punishment clause of

Eighth Amendment, Court of Appeals must confine its

inquiry to whether conditions of confinement “shocked the

conscience,” are greatly disproportionate to offense, or

offend evolving notions of decency. U.S.C.A. Const. Amend.

8.

3. Criminal Law 1213

Three-year sentence imposed on conviction of mailing

obscene matter, such sentence to be served consecutive to

five-year sentence imposed in another prosecution, was not

cruel or unusual as being excessive in view of changing

attitudes of society towards sex. 18 U.S.C.A. 81461;

U.S.C.A.Const. Amend. 8.

4. Post Office 50

Evidence in prosecution for mailing of obscene matter

was sufficient to entitle jury to infer that defendant, as

president, sole shareholder, and corporate official directly

concerned with day-to-day activities of corporations

involved, was aware of mail solicitation efforts and of

contents of brochures, magazines and books. 18 U.S.C.A.

§ 1461.

5. Courts 100(1)

In prosecution for mailing obscene matter which arose

out of events occuring before United States Supreme Court

decision in Miller v. California, defendants would be given

benefits of both Memoirs and Miller standards; materials

would not be judged by Redrup standard. 18 U.S.C.A.

§ 1461.

A. 3

6. Post Office 31(5)

Although other materials in question in prosecution for

mailing obscene matter were obscene under Miller standards,

one magazine was protected under Memoirs “redeeming

social value’’ standard by inclusion therein, in significant

proportions, of a serious discussion of female homosexuality.

18 U.S.C.A. §1461

7. Post Office 31(1)

Where, in prosecution for mailing obscene matter,

Court of Appeals found some advertised materials obscene, it

was not necessary for court to determine obscenity vel non

of advertising circulars themselves, standing alone. 18

U.S.C.A. § 1461.

8. Criminal Law 1186.1

Where, in prosecution for mailing obscene matter,

Court of Appeals found one of two magazines referred to in

single count not to be obscene, Court was required to

reverse conviction on such count even though other

magazine referred to in such count was obscene. 18

U.S.C.A. $1461.

Appeal from the United States District Court for the

Northern District of Georgia.

Before BELL, THORNBERRY and MORGAN,

CircuitJudges.

BELL, Circuit Judge.

Appellant Thevis, The Book Bin, Inc., and Pendulum

Books, Inc., were convicted on numerous counts of violating

18 U.S.C.A. §1461 which prohibits the mailing of obscene

A. 4

matter.' The subject matter of each count of the

indictment involved’ particular magazines, books, or

advertising circulars. Each of the advertising circulars

promoted the sale of at least one of the books or magazines

charged in other counts of the indictment. The district

court instructed the jury to apply the three-pronged test of

Memoirs.?

Appellant Thevis was found guilty on all counts.

Appellant Pendulum Books, Inc. was convicted on counts

two, three and four, while The Book Bin, Inc. was

convicted on counts eight, eleven and fourteen. Appellant

Thevis was sentenced to a term of three years imprisonment

on each count, the sentences to run concurrently with each

other, but consecutively with a five year sentence previously

imposed in a federal obscenity prosecution in the Eastern

District of Louisiana.? Thevis was also fined $5,000 on each

count for an aggregate fine of $45,000. The corporate

appellants were each fined $5,000 on each count for an

aggregate fine of $15,000. We reverse with respect to one

count and affirm as to the remaining counts.

‘Originally charged in a seventeen count indictment

with violating 18 U.S.C.A. §§1461, 1462 and 1465, were

the appellants, Joan C. Thevis, wife of appellant Thevis,

Peachtree News Co., Inc. and _ Peachtree National

Distributors, Inc. Subsequently, the government dismissed

counts one and fifteen, leaving only the appellants and Joan

C. Thevis as defendants. At trial, the district court granted

the defendants’ motion to dismiss as to four of the counts.

The jury returned a verdict of not guilty on all counts as to

defendant Joan C. Thevis.

24 Book Named “John Cleland’s Memoirs of a Woman

of Pleasure’ v. Massachusetts, 1966, 383 U.S. 413, 86 S.

Ct. 975, 16 L.Ed.2d1.

3See United States v. Thevis, 5 Cir., 1974, 490 F.2d

76, affirming the conviction of appellant Thevis.

ee ee ee eee

A. 5

Appellants present three arguments in urging reversal.

These are (1) that the three year sentence of appellant

Thevis, when imposea consecutively with the sentence

imposed in the Eastern District of Louisiana, constitutes

cruel and unusual punishment in violation of the Eighth

Amendment; (2) that as to appellant Thevis, the evidence in

the record is insufficient to establish the element of

scienter, and (3) that the publications charged against the

appellants are not obscene and are thus a _ protected

expression under the First Amendment. We address these

arguments seriatim.

1. Cruel and Unusual Punishment

[1] The crux of appellant Thevis’s argument is that his

actions were undertaken during a period of uncertainty in

the law of obscenity. As a result, he urges that the total

length of his incarceration amounts to a cruel and unusual

punishment, imposed despite a bona fide attempt to

anticipate the position of the Supreme Court. Because we

apply the Memoirs standard infra, and thus judge the

material in question by a standard well known at the time

of appellants’ actions, this argument has no force.

[2,3] Appellant Thevis also argues that because of the

nature of the crime, and the changing attitudes of society

toward sex, his punishment is excessive. In construing the

cruel and unusual punishment clause of the Eighth

Amendment, however, this court must confine its inquiry to

whether conditions of confinement “‘shock the conscience,”

are greatly disproportionate to the offense, or offend

evolving notions of decency. Trop v. Dulles, 1958, 356 U.S.

86, 78 S.Ct. 590, 2 L.Ed.2d 630; Weems v. United States,

1910, 217 U.S. 349, 30 S. Ct. 544, 54 L.Ed. 793. We view

appeilant’s sentence in light of the discretion inherent in the

district court, and decline to hold that a three year

sentence, to be served consecutive to a five year sentence

imposed in another prosecution, is cruel and unusual. On

A. 6

sentences in obscenity cases where the cruel and unusual

argument has been made, see Harris vy. United States, § Cir.

1957, 239 F.2d 612: Heath vy. United States, 8 Cir., 1967,

375 F.2d 521. See generally United States v. Sanchez, 5

Cir., 1975, 508 F.2d 388; United States v. Simpson, 5 Cir.,

1973, 481 F.2d 582; United States v. MacClain, 10 Cir.,

1974, SO1 F.2d 1006.

ll. Scienter

[4] The second argument of appellant Thevis is that

there was insufficient evidence proving scienter. As _ the

Supreme Court stated in /amling v. United States, 1974,

418 U.S. 87, 123, 94 S.Ct. 2887, 2910, 41 L.Ed.2d 590,

624.

It is constitutionally sufficient that the prosecution

show that a defendant had knowledge of the contents

of the materials he disiributes, and that he knew the

character and nature of the materials. To require proof

of a defendant’s knowledge of the legal status of the

materials would permit the defendant to avoid

prosecution by simply claiming that he had not

brushed up on the law.

Thevis contends that the government did not prove his

knowledge of the contents of the publications at issue. The

verdict must be sustained however, if there is substantial

evidence, taking the view most favorable to the government,

to support it. Glasser v. United States, 1942, 315 U.S. 60,

62 S. Ct. 457, 86 L. Ed. 680: Hamling v. United States,

supra. 418 U.S. at 124, 94 S.Ct. at 2911, 41 L.Ed.2d at

624.

We find, as in Hamiling, that based on the evidence

before it, the jury was entitled to infer that appellant

Thevis, as president, sole shareholder, and a _ corporate

official directly concerned with the day to day activities of

A.7

the corporations, was aware of the mail solicitation efforts

and of the contents of brochures, magazines and books.

Ill. Obscenity vel noa

[5] Appellants were convicted on November 11, 1971,

a date prior to the Supreme Court’s decisions in Miller vy.

California, 1973, 413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d

419 and related cases.* Appellants urge that the materials in

question must be judged by the Redrup* standard, which

they assert the Supreme Court applied at the time of their

offense.

This argument is foreclosed by our opinion in United

States v. Thevis, 5 Cir., 1973, 484 F.2d 1149, a previous

case involving the appellant herein. There we held that

pre-Miller convictions were to be reviewed by giving

defendants the benefit of both the Memoirs and Miller

standards. The two tests differ most notably in that to

4 Paris Adult Theatre I v. Slaton, 1973, 413 U.S. 49,

93 S.Ct. 2628, 37 L.Ed.2d 446; United States v. Orito,

1973, 413 US. 139, 93 S. Ct. 2674, 37 L.Ed.2d 513:

Kaplan v. California, 1973, 413 U.S. 115, 93 S.Ct. 2680, 37

L.Ed.2d 492: United States v. 12 200-Ft. Reels of Super 8

mm Film, 1973, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d

500.

SRedrup v. New York, 1967, 386 U.S. 767, 87 S. Ct.

1414, 18 L.Ed.2d 515.

6The Memoirs standard is as follows:

(1) The dominant theme of the material, taken as a whole

must appeal to a prurient interest in sex;

(2) the materials must be patently offensive because they

affront contemporary community standards relating to

description or representation of sexual matters;

(3) the material must be utterly without socially redeeming

value.

A. 8

find materials obscene under Memoirs they must be “utterly

without redeeming social value,” while Miller requires that

the material taken as a whole must lack serious literary,

artistic, political or scientific value.’

{6] In making our independent constitutional judgment

under Jacobellis v. Ohio, 1964, 378 U.S. 184, 190, 84 S.Ct.

1676, 12 L.Ed.2d 793, as to whether the materials in

question are constitutionally protected, we have inspected

the magazines in question and have applied both the

Memoirs and Miller standards. We have concluded that all of

the materials are obscene under Miller, but that one

magazine, ““Lezo,” is protected by the Memoirs requirement

that to be obscene a work must be utterly without

redeeming social value. This magazine is distinguished from

the other materials, which we find obscene, in that it

contains a serious discussion of female homosexuality. The

inclusion of this literary matter in significant proportions

precludes a finding that the magazine is utterly without

redeeming social value. Cf United States v. Thevis, supra.

484 F.2d at 1157.

(Footnote 6 continued)

The Miller standards is as follows:

(1) The average person, applying contemporary community

standards would find that the work taken as a whole

appeals to the prurient interest;

(2) the materials are patently offensive depictions or

descriptions of sexual conduct specifically defined by

the applicable statute;

(3) taken as a whole the materials must lack serious

literary, artistic, political or scientific value.

7As to the second difference between the two

standards, no claims is made here as was made in United

Siates v. Thevis, supra, 484 F.2d 1149, that 18 U.S.C.A.

§146i does not satisfy the Miller requirement that the

applicable statute must specifically define the sexual conduct

whose depictions or descriptions are prohibited.

= a del rg Se «

A.9

[7] The advertising circulars are also prohibited by 18

U.S.C.A. §1461% because they give information concerning

the means by which obscene materials may be obtained.

Because we find obscene some of the advertised materials, it

is not necessary to determine the obscenity vel non of the

circulars standing alone. Cf. Ginzburg v. United States,

1966, 383 U.S. 463, 465, n.4, 86 S. Ct. 942, 16 L.Ed.2d

31.

[8] In summary, we thus reverse the convictions as to

count eleven? of the indictment, which contains the

magazines “‘Lezo” and “‘The Wild Cats.” Though we find no

redeeming social value in the latter, the conviction cannot

stand because of the inclusion in the count of the one

nonobscene item. The judgment of conviction as to the

remaining counts is affirmed.

Affirmed in part; reversed in part.

818 U.S.C.A. §1461 provides in part:

Every written or printed card, letter, circular, book,

Pamphlet, advertisement, or notice of any kind giving

information, directly or indirectly, where, or how, or

from whom _ [obscene matters] ... may be

obtained...; It is declared to be nonmailable

matter... .

°Thevis and The Book Bin, Inc., were convicted on

this count. Appellant Pendulum Books, Inc. was not charged

in the count.

A. 10

APPENDIX “B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-1168

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL G. THEVIS, THE BOOK BIN, INC.

and PENDULUM BOOKS, INC.,

Defendants-Appellants

Appeals from the United States District Court

for the Northern District of Georgia

ON PETITION FOR REHEARING

(MARCH 3, 1976)

Before BELL*, THORNBERRY and MORGAN, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby DENIED.

*This order was concurred in by Judge Bell Prior to his

resignation from the Court on March |, 1976.