Petition — London Press, Inc. v. United States

INTHE:

~ Supreme cout of the United | bianca

Tara ae + October Term, 1976

bee te NO. 9 G-= 4 4 5

: | Lesnar Page: Inc Jay inp ENTERPRISES, INC., PAR-

“ar ee. ~LIAMENT. News, INc., Seven Towers, Inc. dba

| ACADEMY Pe, AMERICAN ART ENTERPRISES, INC.,

nae ee ee. a Petitioners,

Unrrep STATES OF AMERICA, :

| ee Respondent.

——

Petition. for a Writ of Certiorari to the United State

Court of Appeals for the Ninth Circuit.

ee ee

—-_

4

7 FLEISHMAN, BROWN, WESTON & ROHDE,

rs Pek By STANLEY FLEISHMAN,

| 7 433. North Camden Drive, Suite 900,

Beverly Hills, Calif. 90210,

(213) 550-7460 — 272-4221,

Attorneys for Petitioners.

Sam ROSENWEIN,

Of Counsel.

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fees

=? mS

A pet ye dae

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to °e.a ao oe

Parner & Sou, Lac, Law Printers, Loy Angeles. Phone 724-6622

SUBJECT INDEX

Page

i ll l

tained 2

I a lrielaniain 2

Constitutional and Statutory Provisions Involved .... 4

RII cis sicssensncininnsiidelbcdnnanibanibnnadiilbinbiepedtuctatiniaunsdidmniie 4

Reasons for Granting the Writ .............................. 14

SIN oipisitcndindenstnpbiisinadiibiunnandiastdinintiuminnsintaiens 29

INDEX TO APPENDICES

Appendix A. Memorandum Opinion of the Court

BF ID incinicicrinccetenctnnetinindcigtieianesniann App. p. 1

Appendix C. Order Granting Stay of Issuance of

TIED cucsasshonsdinaddinduntidupionsaguindemabaeneinsenebnmiiaibian 4

Appendix D. Constitutional and Statutory Provisions

BND | Sher cccciciestescsicckenstlittddlinanbiotimisnsmedilecebiias ‘5

ii.

TABLE .OF AUTHORITIES CITED

Cases Page

Bouie v. City of Columbia, 378 U.S. 347 23

Cole v. Arkansas, 333 U.S. 196 ............... 25

DeJonge v. Oregon, 299 U.S. 353 _..................... 25

Eaton v. Tulsa, 415 U.S. 697 ...............000 25

Grunewald v. United States, 353 U.S. 391 _.......... 27

Hernandez v. United States, 300 F.2d 114 (9 Cir

PUNE idtotinssbddindscnidaitandadedituiiscetele 28

Jacobellis v. Ohio, 378 U.S. 184 200000. 15

Kingsley Books, Inc. v. Brown, 354 U.S. 436 ...... 17

Krulevitch v. United States, 336 U.S. 440 _.......... 27

Manual Enterprises, Inc. v. Day, 370 U.S. 478 ..14, 15

Marks v. United States, No. 75-708 .000000000000.0..... 23

Miiler v. California, 413 U.S. 15 ........ 2, 13, 14, 15, 16

a TT: 17, 19, 21, 22, 23, 24

New York Times Co. v. Sullivan, 376 U.S. 254 .... 28

Rabe v. Washington, 405 U.S. 313 000000000000... 25

Roth v. United States, 354 U.S. 476 ................. 14

Smith v. California, 361 U.S. 147 ................ 14, 15, 28

Smith v. United States, No. 75-1439 0000000000000... 23

Snyder v. United States, 448 F.2d 716 (8 Cir.

UTI ennsoddenidindaibiehiadiuculasdimniapneeshgibbesabiahidciedladak 28

_Speiser v. Randall, 357 U.S. $13 0000000... 28

Thompson v. Louisville, 362 U.S. 199 000000. 27

Times Film Corp. v. Chicago, 365 U.S. 43 ............ 17

United States v. Barber, 429 F.2d 1394 (3 Cir.

INEE aiieuslitnaenenes seielechinaddiapeninasinagunetaiinamasigeiaaiin nama 28

ili.

Page

United States v. Cutting and Still, Ninth Circuit No.

a ecsannepiisnaiennaapenntn 13, 22, 23

United States v. Falcone, 311 U.S. 205 ...........-.... 27

United States v. Feola, 420 U.S. 671 ..............-.-- 27

United States v. Hamling, 418 U.S. 87 ..............--

cinsaieniiade cigeneapabiaitanciiaianotsanbabiiinnereineee 13, 14, 16, 18

cieneentatealitieamncniiiindainngiipapiocemanaentes 20, 22, 24, 26, 27

BOTS) cccerncesccecsecnsnesscessvooecnccescssesesscnvensnesepnconeneiese 23

United States v. Jacobs, 513. F.2d 564 (9 Cir.

FFB cnccceecccccvssnsecscsessenecensseaseosestnnenennnnaageoonccsssne 23

United States v. Kelton, 446 F.2d 669 (8 Cir. 1971)

United States v. Obscene Magazines, Films and

Cards, (No. 75-1279 [United States v. Thirty-

Seven Photographs, No. 75-1290], August 9,

a - f= 1D ciesieniidpalasiqeilbensisoiainganhines 18, 19

United States v. Peoni, 100 F.2d 401 (2 Cir. 1938)

Si la dliaats 28

United States v. Rodgers, 419 F.2d 1315 (10 Cir

EID * ccaiisecevtinsinsnddsonmnsvenetunnntcnpemaasiennnevenentoouscwns 28

Statutes

United States Code, Title 18, Sec. 2 ............-..-.. 4, 26

United States Code, Title 18, Sec. 371 ............ 4, 26

United States Code, Title 18, Sec. 1461 ....4, 7, 24

POO SF EAS ee a ae Ne 26, 27, 28

United States Constitution, First Amendment ..3, 4, 27

| Page

United States Constitution, Fifth Amendment ....3, 4

United States Constitution, Sixth Amendment a Se

Textbook

Pines, Burt, “The Obscenity Quagmire”, California

State Bar Journal (November-December 1974),

Vol. 46, No. 6, p. 509

IN THE

Supreme Court of the United States

October Term, 1976

I sielleeetiiitidnienes

LONDON PREss, INC., JAYBIRD ENTERPRISES, INC., PAR-

LIAMENT News, INC., SEVEN TOWERS, INC. dba

ACADEMY PRESS, AMERICAN ART ENTERPRISES, INC.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

The petitioners London Press, Inc., Jaybird Enter-

prises, Inc., Parliament News, Inc., Seven Towers, Inc.,

dba Academy Press, and American Art Enterprises,

Inc., respectfully pray that a writ of certiorari issue

to review the opinion and judgments of the United

States Court of Appeals for the Ninth Circuit.

Opinion Below.

The opinion of the Court of Appeals was entered

on August 2, 1976, and appears as Appendix A.

The Court of Appeals directed that its per curiam

opinion not be published.

_—

Jurisdiction.

The judgments of the Court of Appeals were entered

on August 2, 1976. Petitioners duly filed a petition

for rehearing, which petition was denied on August

30, 1976. A copy of the order denying said petition

appears as Appendix B. Thereafter, petitioners filed a

motion for stay of issuance of mandate pending petition

for writ of certiorari to the United States Supreme

Court, which petition was granted on September 13,

1976, provided a petition for writ of certiorari is

filed in the clerk’s office of this Court on or before

September 29, 1976. A copy of the order staying

issuance of the mandate is attached as Appendix C.

Questions Presented.

These corporate petitioners were charged with con-

spiracy, and aiding and abetting, violations of the

federal obscenity statute. It was stipulated that these

petitioners knew only the “contents” of the material.

The case was tried by a single judge, sitting without

a jury. The government specified in its bill of particulars

that the material violated only national standards, and

insisted throughout the trial that the court focus solely

on the issue of national standards. The only evidence

offered by the government and petitioners was on

national standards. The trial judge stated continually

throughout the trial, and upon rendering judgment,

that he was deciding only on the basis of national

standards; that he was not relying on his own knowledge

or his own predilections. On appeal, petitioners became

entitled to the benefits of Miller. It is probable that

the local standards were and are more liberal and

less strict than those of the nation as a whole. The

—_ vo

Court of Appeals below, in affirming the judgments

of conviction, conceded that error had been committed,

but nevertheless affirmed, the panel feeling itself bound

by an en banc ruling of the circuit in another case

tried before a jury, and distinguishable on the law

and the facts. The questions presented are, therefore:

1. Whether the judgments of conviction based solely

upon national standards, deprive petitioners of freedom

of speech re press and due process of law, contrary

to the provisions of the First and Fifth Amendments

to the Constitution and the interpretive decisions of

this Court.

2. Whether the judgments of conviction deprived

petitioners of freedom of speech and press and due

process of law, contrary to the provisions of the First,

Fifth and Sixth Amendments to the Constitution, where,

as here, the government filed a bill of particulars

advising petitioners that the sole charge was that the

indicted material offended national standards, pre-

cluding petitioners from demonstrating that local stand-

ards were more liberal and less strict than the national

standards, and that the indicted material did not offend

local standards.

3. Whether the judgments of conviction under an

indictment charging conspiracy and aiding and abetting,

resting solely on a stipulation that petitioners knew

the “contents” of the material, and without any further

proof of knowledge of the nature and character of

the material or guilty knowledge in any other respect,

deprive petitioners of freedom of speech and press

and due process of law, contrary to the provisions

of the First and Fifth Amendments to the Constitution

and the interpretive decisions of this Court.

a en

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First, Fifth and Sixth

Amendments to the Constitution and Title 18, United

States Code §§2, 371 and 1461, appear as Appendix

D hereto.

Statement.

The petitioners London Press, Inc., Jaybird Enter-

prises, Inc., Parliament News, Inc., Seven Towers, Ince.,

dba Academy Press, and American Art Enterprises,

Inc., appeal from judgments of conviction rendered

after trial before the Honorable E. Avery Crary, a

Judge of the United States District Court for the Central

District of California, sitting without a jury, under

indictment charging violations of 18 U.S.C. §§2, 371

and 1461.

The indictment was returned in the United States

District Court for the Central District of California

on August 16, 1971, and contained thirty-one counts.

The indictment named the corporate petitioners herein

and certain individual defendants who are not involved

in this appeal for reasons which appear hereafter.

A. Prior to trial, petitioners filed a motion for

a bill of particulars, asking the government:

(1) To state whether it is claimed that the

publications referred to in the indictment “substan-

tially exceed contemporary community standards

in the nation as a whole in the description or

representation of sex and nudity” (Emphasis

added ).

(2) To state whether it is claimed that the

publications referred to in the indictment “appeal

to the prurient interest of the average person

in the nation as a whole” (Emphasis added).

=

Pursuant to court order, the government filed a bill

of particulars, stating, inter alia:

(1) “It is claimed that the appeal of one or

more of the materials referred to in each count

of the indictment . . . goes substantially beyond

current community standards or acceptable limits

of candor of the nation as a whole in the descrip-

tion or representation of sex or nudity,” (Empha-

sis added). |

(2) “The appeal referred to . . . considered

in relation to the intended and probable recipients,

is to the prurient interest of the average person

in the nation as a whole.” (Emphasis added).

Prior to trial, counsel for the government and counsel

for the petitioners herein and the individual defendants

named in the indictment entered into a_ stipulation,’

with the approval of the court, entitled “Stipulation

re Motion for Severance”, providing in essence that

a severance be granted with respect to the corporate

petitioners herein and that petitioners’ case be tried

first to the court, without a jury. It was stipulated

that petitioners had agreed to mail the material referred

to in the various counts of the indictment and that

the petitioners had knowledge of the contents of the

material. A document attached to the stipulation was

entitled “Statements of Witnesses”, and it was agreed

therein that the addressees and other persons who

received the material would be deemed to have been

called and sworn and to have testified at the trial

that they received the material named in the indictment

by mail.

1One individual defendant, Robert Reitman, was represented

by separate counsel and did not enter into the stipulation.

ee

In accordance with the stipulation, the trial of

the petitioners commenced on June 20, 1972, before

the Honorable E. Avery Crary, sitting without a jury.

B. As heretofore noted, the indictrrent contains

thirty-one counts. Count 5 did not involve the corporate

petitioners, and Counts 11 and 12 were dismissed

on the government’s motion. The court concluded

that some of the materials charged in the indictment

were obscene and some not obscene. The court found

petitioners not guilty on Counts Two, Three and Four

and guilty on the other counts submitted to it.

C. At trial, the government offered the witness

Father Morton A. Hill as its sole expert with respect

to the issue of “national contemporary community stand-

ards in depicting sex or nudity”. Fether Hill’s testimony

related solely to whether the materials at issue “substan-

tially exceed the national community standards in de-

picting sex or nudity” (Reporter’s Transcript, herein-

after R.T., 23). Each time government counsel asked

the witness his opinion concerning the materials at

bar, the question was asked in terms of national stand-

ards [R.T. 23, 28, 34, 36, 37, 40, 41, 42, 43, 45,

46, 47]. Petitioners’ expert witnesses similarly limited

their testimony to the question of whether the material

went substantially beyond national standards in depict-

ing or representing sexual matters [R.T. 625, 981,

1171, 1172}.

On two separate occasions, the trial judge asked

the government if there was any question as to whether

the national standard was the governing standard for

the case. Government counsel stated that he was trying

*Many of the counts dealt with identical materials. In all,

seven items were found obscene.

a

the case on a national standard theory. The court

stated that it was its understanding that the material

was to be measured by national standards and if there

was any controversy on that, the court would “like

to know” [R.T. 42-43]. After government counsel stat-

ed that the government was not suggesting the applica-

tion of a local standard, the court stated: “All richt.

Then we're applying the national standards.” Govern-

ment counsel agreed, saying, “Yes” [R.T. 43].

During argument on petitioners’ motion for a judg-

ment of acquittal at the close of the government's

case, the following colloquy took place between the

court and government counsel, Mr. Edwards, concerning

the application of national standards:

“THE COURT: It is your position that the

national standard only applies to the first element?

You don’t have to be concerned about a national

standard as to any element other than the first?

Or do you agree it has to be—does the national

standard apply to the prurient appeal?

“MR. EDWARDS: Well, the predominant

theme has to appeal to an average person who

is average by the national standards. That is,

it has to go beyond the limits of candor in the

view of the average person.

“THE COURT: Which is the national stand-

ard?

“MR. EDWARDS: The limits of candor are

taken as the national standard.” [R.T. 384].

D. The corporate petitioners were all charged with

conspiracy to mail obscene material in violation of

18 U.S.C. $1461, and petitioner London Press, Inc.,

a printer, was also charged as an aider and abettor

aitliion

in the substantive counts of the indictment. All of

the evidence having to do with the conspiracy and

all of the evidence except that dealing with the question

of obscenity was introduced by way of stipulation [ Govt.

Exh. 32]. It was stipulated “that during the period

from February 21, 1968 to the date of the indictment

herein [petitioners] within the Central District of Cali-

fornia did agree with one another to mail and did

cause to be mailed the advertisements, books and maga-

zines referred to in Counts 2 to 10 and 13 to 31

of the indictment, that said advertisements, books and

magazines were mailed to the addresses indicated in

said counts and that said corporate [petitioners] had

knowledge of the contents of said advertisments, books

and magazines when they agreed to mail them and

when they caused them to be mailed”. It was further

stipulated that the addressees and other persons received

said advertisements, books and magazines. Attached

to the stipulation was a document entitled “Statements

of Witnesses”, wherein it was stipulated that the

said witnesses be deemed to have been called, sworn

and testified in accordance with the said statements

[Govt. Exh. 32; R.T. 148-151]. Paragraph 1 of the

statement provides as follows:

“Ruth Lucas resided at 370 North Clark Ave-

nue, Los Altos, California on or about May 20,

1970 when she received Government’s Exhibits

2 through 2-D in the mail, Exhibit 2 being an

envelope containing Exhibits 2-A through 2-D.

She had not solicited these exhibits.”

Except for the name and address of the addressee,

the date, and the exhibit number, Paragraphs 2 and

5 through 27 of the said statements of witnesses were

-

identical to Paragraph 1. Paragraph 3 of the statement

provided that Donald Schoof was a United States Postal

Inspector in Los Angeles when he received the govern-

ment’s Exhibits 4 through 4-C from Harold V. Branton,

Assistant Postmaster, Hutchinson, Kansas. Inspector

Schoof had previously solicited and paid for Ex-

hibits 4-A through 4-C, using a fictitious name.

Paragraph 4 of the statement provided that Har-

old V. Branton was Assistant Postmaster, Hutchin-

son, Kansas, on or about July 23, 1970, when he

received the government’s Exhibits 4 through 4-C in

the mail, Exhibit 4 being an envelope containing Exhib-

its 4-A through 4-C. He recognized the addressee as

being a fictitious name used by Postal Inspector Don-

ald Schoof and he delivered the exhibits to Inspector

Schoof. Paragraph 28 of the statement provided that

Wayne Elliott was Superintendent, Indian School Station

Post Office, Phoenix, Arizona, on or about April 19,

1971, when he received the government’s Exhibit 30

in the mail and on or about June 25, 1971, when

he received the government’s Exhibit 31 in the mail.

On both occasions, he recognized the addressee as

being a fictitious one used by Postal Inspector Paul

Alfred and he forwarded the exhibits, without opening

them, to Inspector Alfred in Los Angeles. Paragraph

29 of the statement provided that Paul Alfred was

a United States Postal Inspector on or about April

19, 1971, when he received the government’s Exhibit

30 in the mail, opened it and found it contained

government’s Exhibit 30-A, and on or about June

25. 1971, when he received government’s Exhibit 31

in the mail and opened it and found that it contained

government’s Exhibit 31-A. Inspector Alfred had, by

mail, previously ordered and paid for both Exhibits

30-A and 31-A, using a fictitious name.

_— =

E. On February 24, 1972, the court rendered an

oral opinion [R.T. 1502]. As previously noted, the

court concluded that some of the material involved

in the proceedings was obscene and that some of the

material was not obscene. The trial judge made it

plain in his oral opinion that he was judging the

material by national standards. After observing that

petitioners’ experts testified as to the national survey

and the studies that were made by the Commission

on Obscenity and Pornography, the court stated:

“It was the opinion of these experts, and also

other witnesses that testified on behalf of the

defendants, that based on the results of the [na-

tional] survey and the studies of the Commission

and other experience and work of these experts

that none of the material mailed by the defendants

was obscene. .. .” [R.T. 1503].

The court next observed that the “national survey

was criticized by a witness for the government, Father

Hill, who was also a member of the Commission”

[R.T. 1504]. The court then noted that the recom-

mendation of the Commission was rejected by the

President and Congress. “It’s common knowledge that

Congress is a recognized weathervane as to public

opinion.” Congress’ failure to approve the report of

the Commission was some indication to the trial court

concerning “the community standards from a national

standpoint” [R.T. 1508].

The trial judge made it clear that he was basing

his opinion on the law and the evidence in the case

as he understood it, and not on his personal views

concerning the material. “No one knows better than

I that my personal views have nothing to do with it

a on

at all. I fully appreciate that and I want that to

be sure to be in the comments that are written up.”

[R.T. 1529]. The court expressed the same view earlier,

stating: “Of course, the court has to be careful that

he doesn’t get involved in his own views, because

his views are not material in any sense of the word

...” [R.T. 1447].

On the issue of scienter, the court concluded that

“knowledge of contents” was sufficient [R.T. 1524].

Throughout the trial, petitioners contended that knowl-

edge of contents of the material, without more, was

constitutionally insufficient. Petitioners so argued in

their original motion to dismiss the indictment and

in their motion for a judgment of acquittal at the

close of the government’s case [R.T. 372]. In connec-

tion with the motion for a judgment of acquittal, the

following colloquy took place between the court and

counsel for petitioners:

“MR. FLEISHMAN: ... All I’m really saying

_.. is that it has to be more than merely knowledge

of contents. It may be that the Government is

required to prove that the defendants knew the

material, in fact, went substantially beyond custom-

ary limits of candor and appealed to prurient

interest and was utterly without redeeming social

value.

“THE COURT: In other words, you're saying

that the individual has to be fully apprised of

what the national standard is and, therefore, must

know it’s substantially beyond, is that what you

are saying?

“MR. FLEISHMAN: Yes, your Honor. That

is a heavy burden...”

— =

“THE COURT: Yes, it’s a heavy burden and

it’s something that—I don’t know who knows what

the national standard is. You can get just as

many views almost as you can get witnesses. You

both can get witnesses, of course, as to what

is the national standard.

“MR. FLEISHMAN: That's part of the prob-

lem, your Honor.

“THE COURT: Of course, it is. You expect

every book seller to know what the national stand-

ard is by virtue of what you say it is by your

witnesses and what the Government says it is

by theirs you’d have an imponderable.

“But to say that every bookstore owner must

know what the national standard is and then he

must know that what he has for sale is substan-

tially—that it substantially violates that national

standard.” [R.T. 374-375].

F. Following the rendition of the verdicts of guilty

on the counts heretofore specified, petitioners filed a

motion in arrest of judgment,. a mption for a new

trial, and a motion for judgment of acquittal, all of

which were denied [R.T. 1538-1576]. The petitioner

London Press, Inc., having been found guilty on the

conspiracy count and of aiding and abetting in the

substantive counts of the indictment, where guilty ver-

dicts were returned, was sentenced to pay fines totaling

$33,000. The remaining petitioners, having been found

guilty on the conspiracy count, were each sentenced

to pay a fine of $10,000. The total fines assessed

against petitioners was $73,000. Pending appeal, the

trial court stayed payment of the fines.

— oa

G. On September 26, 1972, each of the petitioners

filed a notice of appeal {Clerk’s Transcript, hereinafter

C.T., 457-571]. The parties duly filed their appellate

briefs in the Court of Appeals prior to this Court’s

decision in Miller v. California, 413 U.S. 15. On August

9, 1973, the Court of Appeals ordered the parties

to file a supplemental brief, addressing themselves to

the impact of this Court’s decisions in Miller v. Cali-

fornia and the other four obscenity cases decided by

this Court on June 21, 1973. Subsequent to the filing

of said supplemental briefs and on October 31, 1973,

the Court of Appeals, sitting en banc, made an order

sua sponte, withdrawing the appeal from the panel

to which it was assigned and taking the appeal en

banc. Prior to the en banc hearing, and after this

Court decided United States v. Hamling, 418 US.

87, the Court of Appeals retransferred the case to

the original panel to which it was assigned for decision.

On August 19, 1974, the parties were ordered to

file a supplemental brief discussing the impact of Ham-

ling on the case at bar. After said briefs were filed,

and on November 24, 1974, submission of the case

was vacated pending the en banc decision in United

States v. Cutting and Still, Ninth Circuit No. 71-2570.

Cutting was decided on June 16, 1976 and the case

at bar was decided on August 2, 1976, the court

relying completely on Cutting. The court below stated,

inter alia:

“Prior to our court’s decision in United States

v. Cutting, . . . appellants’ attack on the national

standards issue had strength. Cutting so far debili-

tates the attack as to reduce the mistake to harm-

less error.”

_—

REASONS FOR GRANTING THE WRIT.

1. Hamling v. United States, 418 U.S. 87, 102,

held that “any consitutional principles enunciated in

Miller which would serve to benefit the petitioners

must be applied in this case”. The government, in

its brief to this Court in Hamling, argued that the

only benefit Miller gave to a person in petitioners’

status flowed from the Court’s shift from a national

to a local standard test. “Petitioners could have bene-

fited from the application of a local standard only

on the unlikely hypothesis that the jurors would have

found their own community more permissive than the

nation as a whole”. (Govt. Br. 30).

Petitioners cannot fairly, or constitutionally, be sub-

jected to penalties unless it can be said, beyond a

reasonable doubt, that the community standards of

the Central District of California are not “more permis-

sive than the nation as a whole”. From the beginning,

it has been recognized that a work may not be con-

demned as obscene if it does not go substantially beyond

contemporary community standards. Roth v. United

States, 354 U.S. 476; Smith v. California, 361 U.S.

147; Manual Enterprises, Inc. v. Day, 370 U.S. 478.

In Manual, Justice Harlan, speaking for the Court,

Stated that an element which is essential to a valid

determination of obscenity is whether the publications

can be deemed so offensive “as to affront current

community standards”. Obscenity connotes, Justice Har-

lan stated, “something that is portrayed in a manner

so offensive as to make it unacceptable under current

community mores” (370 U.S. at 482). Justice Harlan

observed that one of the essential elements of obscenity

is that the material go “substantially beyond customary

limits of candor in description or representation of

matters pertaining to sex and nudity” (370 US. at

_—

486). In- finding the publications there involved not

obscene, Justice Harlan stated that the portrayals could

not “fairly be regarded as more objectionable than

many portrayals . . . that society tolerates” (370 U-S.

at 490).

Justice Harlan expressed similar views in his concur-

ring opinion in Smith v. California, 361 U.S. 147.

He there stated:

“I agree with my brother FRANKFURTER

that the trier of an obscenity case must take

into account ‘contemporary community standards,’

Roth v. United States, 354 U.S. 476, 489. This

means that, regardless of the elements of the

offense under state law, the Fourteenth Amend-

ment does not permit a conviction . . . unless

the work complained of is found substantially

to exceed the limits of candor set by contemporary

community standards. The community cannot,

where liberty of speech and press are at stake,

condemn that which it generally tolerates.” (361

U.S. at 171).

Miller did not change the law in this respect except

that Miller required that the trier of fact apply

local community standards rather than hypothetical

and unascertainable national standards. “It is neither

realistic nor constitutionally sound to read the First

Amendment as requiring that the people of Maine or

Mississippi accept public depiction of conduct toler-

able in Las Vegas or New York City . . . People

in different states vary in their tastes and attitudes.

...” Miller, 413 U.S. at 32-33. Miller also noted

that in Jacobellis v. Ohio, 378 U.S. 184, two Justices

argued that application of “local” community standards

would run the risk of preventing dissemination of mate-

rials in some places because sellers would be unwilling

=

to risk criminal conviction by testing variations in

standards from place to place. Responding to this argu-

ment, Chief Justice Burger stated:

“The use of ‘national’ standards however neces-

sarily implies that the materials found tolerable

in some places but not under the ‘national’ criteria

will nevertheless be unavailable where they are

acceptable.” Miller v. California, 413 U.S. at 33.

Miller expressly emphasized that community standards

differ from the national standard and that local com-

munities differ from one another.

A. This record is not like that in Hamling. In

Hamling, the Court assumed that the jury was probably

not influenced by the “occasional references” to national

standards in the trial court’s instructions and concluded

that the jury correctly applied the standards of the

average person in the community or vicinage from

which it was drawn (418 U.S. at 108). Stressing

the importance of a jury trial in obscenity cases, the

Court stated that a juror “is entitled to draw on his

own knowledge of the views of the average person

in the community or vicinage from which he comes

for making the required determination. .. *% (418

U.S. at 104). A jury was presumed to know community

standards even “without the benefit of expert evidence”

(418 U.S. at 105).

The case at bar was tried to a judge, sitting without

a jury. The trial judge specifically refused to draw

on his own knowledge of the views of the average

person in the community for making the required deter-

mination. He implicitly stated that he did not know

the limits of sexual candor and relied exclusively on

the testimony of the experts in making his determination

{[R.T. 1447, 1529]. The trial judge understood that

—

a federal judge with life tenure, unlike a jury, does

not represent the community. Without the benefit of

expert evidence, he does not have the ability to ascertain

the sense of the “average person, applying contemporary

community standards”. The trial judge recognized that

if it can be said that a jury represents the “average

person”, it can be said equally that an appointed federal

judge is not “average” and does not represent the

“average person”.

Miller emphasized the special role a jury plays in

an obscenity trial. Even before Miller, Judge Hand

stated in United States v. Levine, 84 F.2d 156, 157

(2 Cir. 1936), that obscenity “is a function of many

variables, and the verdict of the jury is not the conclu-

sion of a syllogism of which they are to find only

the minor premises, but really a small bit of legislation

ad hoc. . . .” In Kingsley Books, Inc. v. Brown,

354 U.S. 436, 447, Justice Brennan stated that a

jury trial provides a peculiarly competent application

of the standards for judging obscenity which, by its

definition, calls for an appraisal of material according

to the average person’s application of contemporary

community standards. The jury, he said, “represents

a cross section of the community and has a special

aptitude for reflecting the view of the average person”.

In Times Film Corp. v. Chicago, 365 U.S. 43, 68-

69, Chief Justice Warren, dissenting, said of the censor-

ship there involved: “The inexistence of a jury to

determine contemporary standards is a vital flaw.”

As previously observed, the trial judge twice asked

the government whether he was to apply national stand-

ards, and twice the government assured him that he

was to apply national, and not local, standards. This

is not a case like Hamling, therefore, where “occasional

references” in the trial court’s instructions to the “coun-

—

try as a whole” can be disregarded as “harmless error”.

Aside from the fact that the trial judge was in no

position to “judicially notice” community standards con-

cerning sex, he never undertook to determine whether

the publications offended local community standards.

He was concerned solely with national standards and,

relying on the government expert, found only that

the publications offended those national standards.

One week after the court below decided the case

at bar, a different panel of the Ninth Circuit decided

another obscenity case, demonstrating the probability

that petitioners herein were harmed by not having their

material measured by the correct local standards rather

than the incorrect national standards. United States v.

Obscene Magazines, Films and Cards, (No. 75-1279

[United States v. Thirty-Seven Photographs, No. 75-

1290], August 9, 1976, .... F.2d ....°). In those con-

solidated cases, a divided court affirmed the denial

of forfeiture, on the ground of obscenity, in proceedings

which were tried to the court without a jury. At trial,

the government introduced the allegedly obscene pic-

tures and rested, without putting on expert witnesses.

Defendant also rested without putting on any evidence.

The district judge, focusing on the test of obscenity

dealing with contemporary community standards, stated

that about a year and a half before, a jury sitting

in his court found not obscene a motion picture film

*On August 30, 1976, an order was filed in the Court of

Appeals for the Ninth Circuit, extending the government's time

to file a petition for rehearing or a petition for rehearing with

a suggestion for rehearing en banc to and including September

22, 1976. By letter dated September 17, 1976, the government

advised the Clerk of the Court of Appeals for the Ninth Circuit

that the Solicitor General has determined not to authorize further

review of these cases and that the government accordingly will

not file a petition for rehearing.

— =

depicting vivid and patent sexual relations, vaginal

and oral, between a male and a female. The district

court concluded that “hard-core” material did not neces-

sarily go beyond customary limits of candor in the

Los Angeles area. The government appealed contending

that the district court abdicated its duty in failing

to find the material obscene. In affirming the district

court, the majority of the Court of Appeals described

the pictures as follows:

“[{AJll depict human bodies, or parts thereof,

in various postures of reproductive or erotic behav-

ior. Some, if not all, of the exhibits probably

would be patently offensive to large numbers of

involuntary viewers. Many of the exhibits, however,

might not offend other viewers.”

The court noted that while the material met the

“specificity” requirement of Miller “[{t]he District Court

was not persuaded that any of the exhibits were so

patently offensive, when measured by the community

standards of the Los Angeles area, as to warrant declar-

ing them contraband and forfeit to the Government.”

(Slip Opinion 2). The majority noted that the district

court “was not persuaded that the exhibits in question

were any worse than the photographs found in maga-

zines for sale in various sections of the city and its

surrounding communities.” The majority stated that

the district court could have found the exhibits obscene

under the “patently offensive” test of Miller, but did

not do so. “Had there been a jury, it could, perhaps,

supply its own views of community standards. The

judge, a resident of the general area, felt unable to

assert with any confidence that, by the standards of

the Los Angeles area, the exhibits were sufficiently

offensive to require him to declare them contraband.

—_ ss

... The cases do not hold that a trier of fact must,

as a matter of law, respond at a level of outrage

equal to the minimum level that will pass First Amend-

ment muster under Miller.” (Slip Opinion 2-3).

If, in the case at bar, the government had not

convinced the trial judge that the case was to be de-

cided only on national standards and upon the evidence

of national standards which the government produced,

the trial judge might have reached a conclusion similar

to the conclusion reached by the trial judge in United

States v. Obscene Magazines, Film and Cards [United

States v. Thirty-Seven Photographs|, supra.

It is thus plain the petitioners were materially preju-

diced by the trial court’s reliance on the erroneous

national standards, rather than the correct local stand-

ards. If all of this does not rise to constitutional error,

clearly the judgments of conviction cannot be said

to have been fairly obtained or consistent with “civilized

standards of procedure” which underlie the express

constitutional prohibitions against arbitrary deprivation

of property without due process of law.

B. If the case herein had been tried under the

correct local standards test, petitioners would have dem-

onstrated that the standards of the Central District

of California are more tolerant in matters pertaining

to sex than are the standards in the nation as a

whole. The City Attorney of Los Angeles, Burt Pines,

has admitted as much in an article he wrote entitled

“The Obscenity Quagmire” appearing in the California

State Bar Journal (November-December 1974, Vol.

46, No. 6, p. 509). Unlike Hamling, the trial judge

made it plain that he thought there was a difference

between national and local standards, and that he found

only that the government’s witness on national stand-

ards, Father Hill, was more credible than petitioner's

witnesses testifying concerning national standards. The

trial judge was informed by the prosecution that its

reliance was solely upon “national standards”. The

case was tried solely upon that theory; the evidence

given by the government and by the witnesses for

the defense was directed toward that end; and the

court found only a violation of national standards.

It cannot be assumed that the trial judge disregarded

the evidence and the then governing constitutional prin-

ciples enunciated by this Court and, of his own volition,

decided the case on the basis of a “knowledge of

the views of the average person in the community

or vicinage from which he comes.” A judge sitting

without a jury is thought to be better able than a

jury to follow the law and to base a judgment upon

the evidence presented in a case, excluding every consid-

eration except that which the law requires. Since the

trial judge explicitly stated that he would not rely

upon his own feelings in the matter, it is probable

that he had known that local standards, rather than

national standards, were to be applied, he would have

required the government to put on evidence concerning

local standards, rather than pass a judgment relying

on his intuition. Neither the district court nor the

Court of Appeals gave petitioners the benefit of the

Miller local standards test. To the extent that the

standards of the Central District of California are more

tolerant than the standards of the nation as a whole,

Miller tightened the constitutional rules that previously

had prevailed. As applied to this case Miller altered

the prevailing standards of obscenity by prohibiting

material to be found obscene that could have. been

—27-—

found obscene under the Memoirs national standards

test. Petitioners were entitled to this benefit afforded

by Miller, but did not receive it.

C. As noted above, the court below stated that

prior to the en banc hearing in Cutting, petitioners’

“attack on the national standards issues had strength.

Cutting so far deliberates the attack as to reduce the

mistake to harmless error.” Cutting, it is respectfully

submitted, goes beyond Hamiling, and is distinguishable

from the case at bar. Judge Hufstedler (with whom

Circuit Judges Koelsch, Ely, and Choy concur) dis-

sented in Cutting. The dissenters noted that in Hamling

there was evidence that the local and national standards

were similar. The dissenters recognized that the material

before them “would surely offend some communities”

but found no warrant for assuming that: (1) The

jurors disobeyed the instructions concerning national

standards and applied a hypothetical average person

in some “community” other than the nation, or (2)

the jurors obeyed the instructions, but concluded that

whatever the national standard was, it was no different

from the standard of their own vicinage, or, if there

were any differences, the local standard was stricter.

The dissenters believed that “in the absence of any

evidence in the record about levels of tolerance, the

appropriate assumption is that ‘local’ attitudes and na-

tional standards, in fact, differ. The Supreme Court

in Miller expressly emphasized the existence and import-

ance of such differences in rejecting a national standard

(413 U.S. at 30, 32-33).” The dissenters assumed

that local and national standards differ and could find

no justification in logic or common experience for

deciding that the difference is that a non-national stand-

ard is always stricter than the former national standard.

Without such justification, the dissenters stated, Appel-

lant Cutting was deprived of all opportunity to be

heard on the standards issue. Rudimentary concepts

of due process forbid that result. (Cf. Bouie v. City

of Columbia, 378 U.S. 347, 352; United States v.

Jacobs, 513 F.2d 564, 566 (9 Cir. 1975) ). The dissent-

ers would have remanded the case for an evidentiary

hearing to determine whether appellant Cutting would

have benefited from retrospective application of Miller

and whether the instruction upon national standards

probably affected the jury.

In Cutting the court sought to distinguish United

States v. Henson, 513 F.2d 156, (9 Cir. 1975), where

the court found a national standards instruction preju-

dicial to the defendants. The majority stated a new

trial was ordered in Henson because the government

may have succeeded in its attempt to convince the

jury that the national standard was more strict than

the local standard. The majority noted that Henson

stated that the “prosecutorial attempt to separate and

differentiate a ‘national standard’ from the defense testi-

mony concerning the attitudes of California” distin-

guished Henson from Hamling. . . .” (Slip Opinion

9). It is respectfully submitted that the case at bar

is more analogous to the decision in Henson which

the majority in Cutting distinguished than the Cutting

ruling itself, upon which the court below in the case

at bar placed complete reliance. It is apparent that

in the Ninth Circuit, as in other circuits, there is

considerable confusion as to the proper application

of the community standards test. This petition should

be granted and the case considered together with Marks

v. United States, No. 75-708, and Smith v. United

States, No. 75-1439,

—_—

2. Petitioners were denied a fair trial and due

process of law because they were not notified of the

nature of the charge against them. Indeed, the govern-

ment furnished petitioners with a bill of particulars

which wholly misled petitioners as to the nature of

the charge against them.

The statute here at issue, 18 U.S.C. §1461, does

not provide a definition of “obscenity” and contains

no expression of the controlling community standards.

The indictment was in statutory language only. The

government, in its bill of particulars, claimed that the

appeal of the material at bar “goes substantially beyond

current community standards or acceptable limits of

candor of the nation as a whole in the description

or representation of sex or nudity”. Miller and Hamling

teach us that the reference to the national standards

was constitutionally and statutorily erroneous. In sum-

marizing the Miller holding, the Court stated: “[O]b-

scenity is to be determined by applying ‘contemporary

community standards,’. See, Kois v. Wisconsin [408

U.S. 229 (1972) (per curiam)] supra, at 230, and

Roth v. United States [354 U.S. 476 (1957)] supra,

at 489, not ‘national standards’” (413 U.S. at 37).

Hamling states: The result of the Miller cases, therefore,

as a matter of constitutional law and federal statutory

construction, is to permit a juror sitting in obscenity

cases to draw on knowledge of the community or vicin-

age from which he comes in deciding what conclusion

‘the average person, appiying contemporary community

standards’ would reach in a given case.” (418 US.

at 105).

The court below held that the reference to national

standards in the bill of particulars did not render

the indictment invalid, saying: -

ee wee emma

Ae 2s REESE a ae

~ eee = ae -

— =

“The indictment stated an offense under pre-

Miller law. (E.g., Memoirs v. Massachusetts

(1966) 383 U.S. 413; Roth v. United States

(1957) 354 U.S. 476; Cf. Manual Enterprises,

Inc. v. Day (1962) 370 U.S. 478, 488). The

indictment did not describe the ‘community’ stand-

ard in geographic terms. Thus, the face of the

indictment did not offend the Miller-Hamling rule.

A bill of particulars is not an amendment to

or a subtraction from the indictment. (Pitkin v.

United States (Sth circuit 1957) 243 F.2d 491,

494.) The indictment is valid.”

Petitioners do not here contend that the indictment

is invalid. Rather, they contend that they were denied

due process of law, and a fair trial, by being advised

by the government, in the bill of particulars, to defend

under erroneous and unconstitutional standards and

were precluded from defending under the correct, and

constitutional, “community” standard. It is clear that

petitioners’ convictions were sustained below on an

assumption that the materials at bar went substantially

beyond contemporary standards of the Central District

of California in depiction or representation of matters

pertaining to sex or nudity. It is equally clear that

petitioners were not charged with violating that stand-

ard, nor were they tried and convicted of violating

that standard. This Court has repeatedly held that

treating a conviction as a conviction upon a charge

not made is a denial of due process of law. DeJonge

v. Oregon, 299 U.S. 353; Cole v. Arkansas, 333 U.S.

196; Rabe v. Washington, 405 U.S. 313; Eaton v.

Tulsa, 415 U.S. 697.

fifine

Additionally, the function of a bill of particulars

is to provide a defendant with information about the

details of the charge against him so that he may

prepare his defense and avoid prejudicial surprise at

the trial. The issue on a motion for a bill of particulars

is what the government intends to prove. In the case

at bar, the bill of particulars framed the issues and

precluded petitioners from introducing evidence which

might have persuaded the trial judge that the material

at bar did not offend contemporary “community” stand-

ards. As Justice Brennan stated, dissenting in Hamling:

“To affirm their convictions without affording

them opportunity to try the case on the ‘local’

standards basis is a clear denial of due process.”

418 U.S. at 150; see, Saunders v. Shaw, 244

USS. 317.

3. The record is barren of evidence to support

a finding that petitioners violated 18 U.S.C. §371 by

conspiring to violate 18 U.S.C. §1461. Similarly, the

record is barren of any evidence to support a finding

that petitioner London Press, Inc. violated 18 U.S.C.

§2 by aiding and abetting a violating of 18 U.S.C.

§1461.

As previously noted, all the evidence having to do

with the conspiracy, and aiding and abetting except

that dealing with the question of obscenity was intro-

duced by way of stipulation. The stipulation provided

that petitioners did agree with one another to mail

and did cause to be mailed the material charged with

being obscene and that they had knowledge of the

contents of said material when they agreed to mail

the material and when they caused the material to

be mailed. The stipulation did not meet the requirements

—_~ =

of Hamling, which held that §1461 requires that the

defendant have knowledge of the contents and that

he know the character and nature of the materials.

“It is constitutionally sufficient that the prosecu-

tion show that a defendant had knowledge of

the contents of the materials he distributed, and

that he knew the character and nature of the

materials.” (418 U.S. at 123. Emphasis added).

Knowledge of the character and nature of the ma-

terials on the part of these petitioners was never proven.

The government, and the courts below, were of the

view that §1461 was within that category of offenses

that dispense with mens rea requirements. Petitioners

submit that the obscenity statute, touching as it does

First Amendment rights, requires that the government

prove guilty knowledg before a conviction may validly

be obtained. Since there was no proof of guilty knowl-

edge herein, there is a total absence of proof of guilt.

Conviction without proof of guilt is, of course, a denial

of due process. Thompson v. Louisville, 362 U.S. 199.

Moreover, the only charge against the petitioners

is that they conspired to violate 18 U.S.C. §1461

and that petitioner London Press, Inc., aided and

abetted a violation of §1461. Such charges carry addi-

tional scienter requirements. The gist of the offense

of conspiracy is a combination or agreement, with guilty

knowledge, to disobey or to disregard the law. Krule-

vitch v. United States, 336 U.S. 440, 445, 446, Fn.

2; Grunewald y. United States, 353 U.S. 391, 404;

United States v. Falcone, 311 U.S. 205.

In United States v. Feola, 420 U.S. 671, the Court,

with apparent approval, referred to the “Powell Doc-

trine” to the effect that a conspiracy to be criminal,

—23—

must be animated by a corrupt motive or a motive

to do wrong.

Just as a conspiracy requires a criminal intent, to

find one guilty as an aider and abetter it must be

proved that the person shared in the criminal intent

of the principal and there must be a community of

unlawful purpose at the time the act is committed.

By far the most important element is the sharing of

the criminal intent of the principal. The crime of

aiding and abetting is one that requires a “specific

intent”. There must be a culpable purpose before an

act can be equated with aiding and abetting. See,

Hernandez v. United States, 300 F.2d 114, 123-124

(9 Cir. 1962); Snyder v. United States, 448 F.2d

716, 718-719 (8 Cir. 1971); United States v. Peoni,

100 F.2d 401, 402 (2 Cir. 1938); United States v.

Kelton, 446 F.2d 669 (8 Cir. 1971); United States

v. Rodgers, 419 F.2d 1315 (10 Cir. 1970); United

States v. Barber, 429 F.2d 1394 (3 Cir. 1970).

If, as in the case at bar, a judge sitting in an

obscenity prosecution as a trier of fact may find a

person guilty of conspiring to violate §1461 and aiding

and abetting a violation of that section, merely from

proof that an accused knew the “contents” of the

materials, then the trier of the facts is left free to

presume guilt by his own subjective predilections, on

the basis of arbitrary inferences and presumptions which

undermine all procedural safeguards required in prosecu-

tions involving speech and press. See, Smith v. Califor-

nia, 361 U.S. 147; New York Times Co. v. Sullivan,

376 U.S. 254; Speiser v. Randall, 357 U.S. 513.

—229—

Conclusion.

For the foregoing reasons a writ of certiorari should

issue to review the judgments and opinion of the United

States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

FLEISHMAN, BROWN, WESTON & ROHDE,

By STANLEY FLEISHMAN,

Attorneys for Petitioners.

SAM ROSENWEIN,

Of Counsel.

APPENDIX A.

Memorandum Opinion of the Court of Appeals.

United States Court of Appeals, for the Ninth Circuit.

United States of America, Plaintiff-Appellee, vs. Lon-

don Press, Inc., Jaybird Enterprises, Inc., Parliament

News, Inc., Seven Towers, Inc., dba Academy Press,

American Art Enterprises, Inc., Defendants-Appellants.

Nos. 72-2938, 72-2939, 72-2940, 72-2941, 72-2942.

MEMORANDUM

[ August 2, 1976]

Appeal from the United States District Court

for the Central District of California

Before: BROWNING and HUFSTEDLER, Circuit

Judges, and SOLOMON, * District Judge.

Defendants appeal from their convictions for violating

18 U.S.C. §§2, 371, and 1461 (mailing obscene mat-

ter’) following trial by the court, sitting without a

jury. The convictions antedated the decision of Miller

v. California (1973) 413 U.S. 15 and its companion

obscenity cases. Numerous issues have been raised

in the multiple briefs filed by the parties in response

to changes in obscenity law that have occurred during

the pendency of the appeal. Almost all of the original

issues have vanished in the wake of Miller v. California,

supra, United States v. 12 200-Ft Reels (1973) 413

U.S. 123, and Hamling v. United States (1974) 418

U.S. 87.

*Honorable Gus J. Solomon, Senior United States District

Judge, District of Oregon, sitting by designation.

1The materials found obscene were advertising brochures

and magazines containing pictures similar to those described

in Hamling v. United States (1974) 418 U.S. 87, 92-93.

a we

The two remaining issues are posed by the Hamling

rule that obscenity in a Section 1461 prosecution is

not to be determined by a national standard: (1)

Did the statement of a national standard as “the current

community standard” invalidate the indictment? (2)

Was the application of the national standard at trial

prejudicial error?

The indictment stated an offense under pre-Miller

law. (E.g., Memoirs v. Massachusetts (1966) 383 U.S.

413; Roth v. United States (1957) 354 US. 476;

cf. Manual Enterprises, Inc. v. Day (1962) 370 US.

478, 488.) The indictment did not describe the “com-

munity” standard in geographic terms. Thus, the face

of the indictment did not offend the Miller-Hamling

rule. A bill of particulars is not an amendment to

or a subtraction from the indictment. (Pipkin v. United

States (5th Cir. 1957) 243 F.2d 491, 494.) The

indictment is valid.

Prior to our court’s decision in United States v.

Cutting (9th Cir. en banc 1976) .... F.2d ..... [No.

71-2570, Slip Op’n June 16, 1976], appellants’ attack

on the national standards issue had strength. Cutting

so far debilitates the attack as to reduce the mistake

to harmless error.

Affirmed.

~ et tae meenet trees oP. od

A

i i LLL CIEE BT

—3—

APPENDIX B.

Order Denying Petition for Rehearing.

United States Court of Appeals, for the Ninth Circuit.

United States of America, Plaintiff-Appellee, v. Lon-

don Press, Inc., Jaybird Enterprises, Inc., Parliament

News, Inc., Seven Towers, Inc., dba Academy Press,

American Art. Enterprises, Inc., Defendants-Appellants.

Nos. 72-2938, 72-2939, 72-2940, 72-2941, 72-2942.

ORDER

Filed: —Atigust 30, 1976.

Before: BROWNING and HUFSTEDLER, Circuit

Judges, and SOLOMON, * District Judge.

The petition of defendants-appellants for rehearing

is denied.

*Honorable Gus J. Solomon, Senior United States District

Judge, District of Oregon, sitting by designation.

—4—

APPENDIX C.

Order Granting Stay of Issuance of Mandate.

United States Court of Appeals, for the Ninth Circuit.

United States of America, Plaintiff-Appellee, vs. Lon-

don Press, Inc., et al., Defendants-Appellants. Nos.

72-2938, 72-2939, 72-2940, 72-2941, 72-2942, DC

#CR-8653-EAC.

ORDER STAYING

ISSUANCE OF MANDATE

Filed: September 13, 1976.

Upon application of Stanley Fleishman, Esq. counsel

for the Appellants, and good cause appearing, IT IS

ORDERED that the issuance, under Rule 41(a) of

the Federal Rules of Appellate Procedure, of the certi-

fied copy of the judgment of this Court in the above

cause be and hereby is stayed pending the filing, consid-

eration and disposition by the Supreme Court of the

United States of a petition for writ of certiorari to

be made by the Appellants herein, provided such peti-

tion is filed in the Clerk’s Office of the Supreme

Court of the United States on or before September

29, 1976.

In the event the petition for writ of certiorari is

granted, then this stay is to continue pending the

final disposition of the case by the Supreme Court

of the United States.

/s/ Shirley M. Hufstedler

Shirley M. Hufstedler

United States Circuit Judge.

Dated: San Francisco, Calif.

ie

eee

1.

are:

~

APPENDIX D.

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First Amendment

“Congress shall make no law . . . abridging

the freedom of speech or of the press. . . .”

2. The pertinent provisions of the Fifth Amendment

are:

“No person shall . . . be compelled in any

criminal case to be a witness against himself nor

be deprived of life, liberty or property, without

due process of law. . .”

3. The provisions of the Sixth Amendment are:

4.

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district wherein

the crime shall have been committed, which district

Shall have been previously ascertained by law,

and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.”

18 U.S.C. §2 provides:

“(a) Whoever commits an offense against the

United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable

as a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another

would be an offense against the United States,

is punishable as a principal.”

5.

6.

_—

18 U.S.C. 371 provides:

“If two or more persons conspire either to

commit any offense against the United States,

or to defraud the United States, or any agency

thereof in any manner or for any purpose, and

one or more of such persons do any act to effect

the object of the conspiracy, each shall be fined

not more than $10,000 or imprisoned not more

than five years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a mis-

demeanor only, the punishment for such conspiracy

shall not exceed the maximum punishment pro-

vided for such misdemeanor.”

18 U.S.C. 1461 provides in pertinent part:

“Every obscene, lewd, lascivious, indecent, filthy

or vile article, matter, thing, device, or substance;

and—

* * *

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, or by what means

any of such mentioned matters, articles, or things

may be obtained or made * * *

* * *

Is declared to be nonmailable matter and shall

not be conveyed in the mails or delivered from

any post office or by any letter carrier.

Whoever knowingly uses the mails for the mail-

ing, carriage in the mails, or delivery of anything

declared by this section or section 3001(e) of

Title 39 to be nonmailable, or knowingly causes

—

to be delivered by mail according to the direction

thereon, or at the place at which it is directed

to be delivered by the person to whom it is

addressed, or knowingly takes any such thing from

the mails for the purpose of circulation of disposing

thereof, or of aiding in the circulation or disposition

thereof, shall be fined not more than $5,000 or

imprisoned not more than five years, or both,

for the first such offense, and shall be fined

not more than $10,000 or imprisoned not more

than ten years, or both, for each such offense

thereafter.”