Petitioners Brief — Hamling v. United States

SUBJECT INDEX

Page

Opinion Below ..........-------------s---sessseseeeneenenene 1

JurisdictiOM —...............----e--eoreeeeneennenenennennnennennennnnene 1

Questions Presented ..............----------- ‘ 2

Constitutional and Statutory Provisions Involved .. 6

Statement AS RG a TR as a 6

Argument .......-.-.-----n---sseesnsesneeeeneesesenenenenenenenensnnnns 16

I.

The Provisions of Title 18 United States Code.

$1461, on Their Face and as Construed and

Applied to Petitioners’ Pre-June 21, 1973

Conduct, Violated the Guarantees of the

First and Fifth Amendments to the United

States Constitution, Because They Failed to

Provide “Fair Notice” or “Concrete Guide-

lines” as to What Sexual Expression Was

Prohibited by the Provisons of the Statute ... 16

- 1. Prior to June 21, 1973, § 1461 Was Un-

constitutionally Vague, Because It Failed —

to Contain a Description of the Sexual

Conduct Miller Held Was Constitution-

ally Mandated and the Statute Had Not

Received a Prior Authoritative Construc-

tion Reading the Necessary Terminology

Into the Statute ................--.-.c.----cc---.-.0- 25

2. Prior to June 21, 1973, §1461 Was Un-

constitutionally Vague, Because the Stat- 4

ute Was Authoritatively Construed as Re- 4

quiring Proof That Charged Publica-

tions Offend National Standards, Which

Nationwide Standards This Court Found

Were Unascertainable, Unprovable and

29

Page

3. Prior to June 21, 1973, the Statute Was

Authoritatively Construed as Requiring

Proof That Charged Publications Ap-

peal to the Prurient Interest of the Aver-

age Person in the Nation as a Whole,

Which Test This Court Labeled “Un-

MEN ansncsestbaiins hasicicoeasacseallenanencianniean 33

4. Prior to June 21, 1973 §1461 Was Un-

constitutionally Vague Because It Uti-

lized an Unworkable and Ambiguous

Test—the “Utterly Without Redeeming

IE iar hice dnacentehtinasionene 34

5. Prior to June 21, 1973, §1461 Was so

Vague, Ambiguous and Unworkable

That This Court Was Required to Adopt

the Redrup Approach of Deciding Each

Case on an Ad Hoc Basis, Without At-

tempting to Offer Guidance to Those

Subject to the Provisons of the Statute .. 36

Il.

In Light of This Court’s June 21, 1973 Rulings

the Indictment Herein Is Fatally Defective Be-

cause It Failed to Inform Petitioners of the

Nature and Cause of the Accusations Against

Them in Violation of the Provisions of the

iy SUE ss heen 39

Il.

The Provisions of Title 18 United States Code

- §1461, on Their Face and as Construed and

Applied to Authorize the Jury to Measure the

Prurient Appeal of the Brochure by Its Im-

pact on Undefined Sexually Deviant Groups

Rather Than Solely by Its Impact on the Aver-

i a

Page

age Person in the Nation as a Whole, Vio-

lated the Free Speech and Press Provisions of

the First Amendment and the Due Process

Provisons of the Fifth Amendment ...........- 45

A. The Trial Court Committed Reversible

Error and Rendered §1461 Unconstitu-

tionally Vague and Broad When It In-

structed the Jury That It Could Measure

the Brochure by Its Appeal to the Pruri-

ent Interest of the Average Person or

Its Appeal to the Prurient Interest of

Undefined Sexually Deviant Groups ...... 46

B. The Trial Court Committed Reversible

Error When It Permitted the Govern-

ment to Adduce Evidence That Pictures

Which Appeared Both in The Illustrated

Report and the Brochure Appealed to

the Prurient Interest of Sexually Deviant

GTOUPG ..........-----0.------c+-eceeceennnennennntnnennees 49

C. The Trial Court Committed Reversible

Error in Failing to Instruct the Jury, as

Requested by Petitioners, That “Prurient

Interest” Must Be Measured by Na-

tionwide Standards .................-:...--------+- 50

IV

The Provisions of Title 18 United States Code

§1461, on Their Face and as Construed and

Applied, Violate the Free Speech and Press

Provisions of the First Amendment and the

Due Process Provisions of the Fifth Amend-—

ment, Because the Trial Court Instructed the

Jury That It Could Find the Brochure Ob-

scene Even if the Brochure Did Not Meet the

Roth-Memoirs Test if the Jury Found “Pan-

Page

dering”, Notwithstanding the Fact That

Neither the Statute nor the Indictment Fairly

Advised Petitioners That They Were Charged

WR I aviv. 52

V.

The Brochure at Issue Is Protected by the Free

Speech and Press Provisons of the First

Amendment to the United States Constitution.

It is Neither Obscene in Fact nor in Law .... 58

A. The Record Establishes That the Bro-

chure Has Social Value and Serious

I ah aicidcieccanceenianiatenieneie 61

B. The Record Establishes That the Bro-

chure Is Not Patently Offense to Nation-

al Standards or to Standards of the

Southern District of California ............ 66

C. The Record Establishes That the Bro-

chure Does Not Appeal to the Prurient

Interest of the Average Person ............ 69

D. Documentary Evidence, Introduced by

the Government, Establishes That the

Brochure Is Not Obscene .................... 70

E. The Government Failed to Discharge Its

Burden of Proving Under Our Criminal

Standards That the Brochure Was “Ut-

terly Without Redeeming Social Value”,

Patently Offensive to “National Stand-

ards” and Appealed to Prurient Interest,

Applying “National Standards” ............ 71

VI.

Petitioners Were Denied a Fair Trial, and Due

Process of Law, When the Trial Court, in

Open Defiance of Rule 30, Federal Rules of

—

B.

Criminal Procedure, Denied Petitioners the

Opportunity to Make Objections to the Court’s

Jury Charge Outside the Presence of the

Jury

Vil

Petitioners Were Denied a Fair Trial by an Im-

partial and Representative Jury, in Violation

of the Guarantees of the Fifth and Sixth

AmmertOIAS | .......~-......~~2..-0cenoencoserrewseenerecesons

A. The Trial Court Abused Its Discretion

and Denied Petitioners Due Process of

Law When It Refused to Grant a Short

Continuance Which Would Have Af-

forded Petitioners a Jury Panel Which

Did Not Systematically and Absolutely

Exclude All Persons Under 24 Years

OE Age ....---.-----.-no-nornesncencenccecnenenennncernne

The Trial Court Abused Its Discretion

and Denied Petitioners Due Process of

Law When It Improperly Refused to

Ask Prospective Jurors Questions on

Voir Dire Designed to Expose Their

Biases and Prejudices Converning “Ob-

scenity” and Sex ............---------------s-e-e0+++

Vill

Petitioners’ Fifth Amendment Rights to a Neu-

tral and Unprejudiced Grand Jury Were Vio-

lated Because the Government Attorney Made

Biased and Prejudiced Remarks to the Grand

Jury Which Returned the Indictment ..............

COMCHUSION _ ......-----.---------------enceeeesennnenencsnennecscserens

Page

72

87

87

vi.

TABLE OF AUTHORITIES CITED

Cases

Aday v. United States, 388 U.S.447

Aldrich v. United States, 283 U.S.308

Ballard v. United States, 329 U.S.187 ................ 92

Bantam Books, Inc. v. Sullivan, 372 U.S.58 ........ 21

Barenblatt v. United States, 360 U.S. 109 ............ 21

weount v, Ri, GOO UB410 «..... cc... 29

Borden’s Farm Products Co., Inc. v. Baldwin,

8 Reenter mR a eae LEROP IS 23

Boule vy. Columbia, 378 U.S.347 ......................... 29

Burstyn v. Wilson, 343 U.S.495 .000000000....... 19, 36

Chastleton Corp. v. Sinclair, 264 U.S.543 .......... 23

Coffmen v. Breeze Corps, 323 U.S.316 (1945) .. 24

Cohen v. California, 403 U.S.15 ............00000......... 36

Commercial Pictures Corp. v. Regents, 346 U.S.

OT ccna oc ae

Costello v. United States, 350 U.S.359 2.0... 100

Douglas v. Buder, 412 U.S.430 ...000...e en 29

Dunn v. St. Louis-San Francisco Ry. Co., 370

ae See Cie Ga TINE ice 83

Coes Vv. Tee, 305 UST ........................... 19

Ginzburg v. United States, 383 U.S.463 ...... 9, 32, 3

aa ; 34, 51, 54, 93, 100

Glasser v. United States, 315 U.S.60 .................... 92

Gojack v. United States, 384 U.S.702 -...0000000000.... 72

Grayned v. City of Rockford, 408 U.S.104 _.. 38

Groppi v. Wisconsin, 400 U.S.505 ~.020022.. oo... 91

Hall v. United States, 378 F.2d 349 (10 Cir.

1967) an 1. @

Page

Hamm v. South Carolina, 409 U.S.524 ............-- 98

Hayburn’s Case, 2 Dall. 409 CITRR ica 24

Hernandez v. Texas, 347 U.S.475 .......-.--------------- 89

Hodges v. United States, 243 F.2d 281 (5 Cir.

9ST) n..er.eeceeeseeecensescessnsseecenoveresnenenenaseseunennonenenen 81

Holmby Productions, Inc. v. Vaughn, 350 US.

aah cannicsecssccccesnctodisscnersiaspeneeniainetoueiennaenamenvess 19

Hoyt v. Minnesota, 399 U.S.524 -......--------1----0----0-+ 18

Interstate Circuit, Inc. v. Dallas, 390 U.S.676 .. 19

ss aaimhninbonsshianlaasinesieionidin seinehsinomantaiinaipniecssninieiiae 20

Irvin v. Dowd, 366 U.S.717 ........----------:---e0---20200* 91

Jacobellis v. Ohio, 378 U.S.184 ........---------------- nS

Kingsley Int'l. Pic. Corp. v. Regents, 360 U.S.684

i sstmabeansnmnenenieorensamnnlelimanah anata 19, 20

Kobey v. United States, 208 F.2d 583 (9 Cir.

VDSS) cnncneraceescoessnenseceeosecnsnnvensensssctonnnansneconsbebons 85

Luros v. United States, 389 F.2d 200 (8 Cir.

DGB) cvcncseccecccecccnsswsasencensessanenenernontensiensenmenneniinn 58

Louisiana v. Shreveport News Agency, Inc., 287

So.2d 464 (S. Ct. Laa., 1975) ~.......cc0ces-n-s-s 28, 29

Manual Enterprises, Inc. v. Day, 370 U.S.478 .. 30

Marcus v. Search Warrants, 367 U.S.717 .........--- 21

Memoirs v. Massachusetts, 383 U.S.413 ...........- &,. -33

PU SLRS 34, 36, 38, 40, 45, 48, 50, 52

Miller v. California, 413 U.S.15 .......... 1; asia

eC arOS Meee 20, 24, 25, 27, 28, 29, 30, 32, 35

sennaiabinds 34 36, 38, 39, 40, 48, 49, 50, 71, 92, 93

Muskrat v. United States, 219 U.S. 346 (1911) .. 24

Nashville C.&S.L.Ry. v. Walters, 294 U.S.405 .... 24

NAACP v. Button, 371 U.S.415 ...........-.....------- 21

Nelson v. United States, 406 F.2d 1136 (10 Cir. .

og BREET Re ONE tee Pree eaoe eho oe OE

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

O’Shea v. Littleton, ... U.S. ..... 94 S.Ct.669 _.

Paschall v. Christie-Stewart, Inc., 414 U.S. ...., 94

I 5 birsacadlimpasilhttasealicinacdliehaambeiincermnenipnitisusarnans

Polk Co. v. Glover, 305 U.S.5 ....--c.ccceecceeeso-.

Rabe v. Washington, 405 U.S.313 ................ 44,

Rowan v. United States Post Office Dept., 397

U.S.728 _..54,

Russell v. United States, 369 U.S.749 _.40, 41, 43,

Sheppard v. Maxwell, 384 U.S.333 -.........002.000.....

Smith v. California, 361 U.S.147 .........-....-....... 19,

Speiser v. Randall, 357 U.S.513 2-0... 21,

Spinar v. United States, 440 F.2d 1241 (8 Cir.

SRD cri ceaienn snap rinsasscndtianaeiinicaieddnadiccsnsncaea

Stanley v. Georgia, 399 U.S.557 .................. 21,

Stearns v. Wood, 236 U.S.75 (1915)...

Stromberg v. California, 283 U.S.359 2000020000...

Superior Films, Inc. v. Dept. of Education, 346

U.S.587 iicdaseoeetiaaniniciaiackapiinitligspadteaidbinine debictacnns

Swain v. Alabama, 380 U.S.202 ............. aries

Thiel v. Southern Pac. Co., 328 U.S.217 ............

Torres v. United States, 270 F.2d 252 (9 Cir.

3 BRAD SES Saar aa aes CEASE RA 89,

United Public Workers v. Mitchell, 330 U.S.75

(1946) oon cratic tlshasanacilgsiet ahs

United States v. Baranov, 418 F.2d 1051 (9 Cir.

| GEREN SE AL SOE Be Ae OP era 74,

24

77

Page

United States v. Beard, 414 F.2d 1014 (3 Cir.

19G9)° .-..-----.----0s.----nnen-nnnnnncnnennnnene . 45

United States v. Blount, 479 F.2d 650 (6 Cir.

1973) ..-c--ren--n--n--nn-n--ns-nencenenenecsenennsnenncenerensnsennenes 98

United States v. Books, Inc., 388 U.S.449, rvsg.

358 F.2d 935, 431 F.2d 272 (9 Cir. 1970) -..- 58

United States v. Butera, 420 F.2d 565 (1 Cir.

1970) -..-0-------c--es--nssneneeonnnconcveennssnneecesnnenneens 89, 90

United States v. Carll, 105 CIES viccrereonne 41

United States v. Di Grazia, 213 F.Supp.232 (E.D.

ee ED ccthigtinseen ATES SLITS IES SS 100

United States v. Dellinger, 472 F.2d 340 (7

Cir. 1972), cert. denied 410 U.S.970 .........--. 90, 98

United States v. Evans, 213 U.S.297 (1909) .. 24

United States v. Farinas, 299 F.Supp.852 (D.C.

NY, 1969) ........-.2.--.2c--.e-ennnreecncencenenccensenenenase 45

United States v. Fernandez, 456 F.2d 638 (2 Cir.

ROT DY cava cin canna encn nec snennnesenncstecennsntonee 78, 79, 81

United States v. Fiorito, 465 F.2d 431 (7 Cir.

VOTZ) ninvecaincccsnnneenceceocvecnennsennccennnseccnesneoeonsioncngen 45

United States v. Friedman, .... F.2d -... (10 Cir.

Nos. 72-1143-1144, Dec. 11, 1973) .......-...-.- 38

United States v. Henson, .... F.2d .... (9 Cir., No.

73-2063, Oct. 5, 1973) -..-...----------s---eeeee++ 25. 3

United States v. Huffman, 467 F.2d 189 (6 Cir.

POTD) an nnancinnnnanvennsnsnnsnescccnecenssentnenensenerenesenennens 82

United States v. Klaw, 350 F.2d 155 (2 Cir.

OGD) a rie 51

United States v. Leonard, 455 F.2d 949 (9 Cir.

cn dcendsdeRcuesseessedssoedsesSescnsassonsesonnsse oseqnEneeaneen

Page

United States v. Levine, 83 F.2d 156 (2 Cir.

SOG) 9 i aiiccecsnecsrencenesyitinorsnivmciciennenvatintnnsioapotainenbineee 92

United States v. Lewin, 467 F.2d 1132 (7 Cir.

STE). scrviitiinisencenranshghiospinancsvenahnamnipinbacssinenniineesioes 98

United States v. Little, 317 F.Supp.1308 (D.C.

Bek, DOT OD 2 ioressieiiredetncisvnnaneg)ikoschiswaplocmmtnnnrenege 45

United States v. Orito, 413 U.S.139 .............. 30, 39

United States v. Palladino, 475 F.2d 65 (1 Cir.

DOTS Y avcccvensccencsipeleniictininnaidenseaniapenterinnty 58, 60, 61

United States-v. Palladino, .... F.2d .... (1 Cir.

7. 9 Seeeamaerstcen Mate 2 . CE Ee Re ine daa = 30, 38, 39

United States v. Parker, 428 F.2d 488 (9 Cir.

kf ) ania Te SE RINE nay Rg MESS = PnoE Deron Sota enn 89, 90

United States v. Pellegrino, 467 F.2d 41 (9 Cir.

060 5055886 O 5 oS SESS SSSSS ST SSOSESSSSSSSSSSSS SSS ESS OS ESS

United States v. Peterson, 475 F.2d 806 (9 Cir.

TGTB) wvcccnecewiednonsecersnslentewcesesesnenrnensncheceeioussnenen

United States v. Pinkus, 333 —e (C.D.

re Cees | yf & Carga Wremmesreunotrenmeuenumiacsc -wononercvnsnts weeny 54

United States v. Roth, 237 F.2d 196 (2 Cir.

SOGGY aiden 3, 17, 36, 38, 40, 45, 48, 52, 93

United States v. Schartner, 426 F.2d 470 (3 Cir.

1970) 2 acai h-Siealiaeuatina 78, 80

United States v. Schneiderman, 102 F.Supp.87

(D.C. Cal. 1951) ..........--c-serersseoseresessnensnnanennsees 45

United States v. Thevis, 484 F.2d 1149 (3 ¢ Cir.

SII asasnnsnsienennisiweecorsntaseeennncabiidansencnnagnninines 27

United States v. 12 200-Ft. Reels, 413 U.S.123 .

ceesececccecceecens comecesdecessesssessessesaseoesssesesnosgeeseneeense

xi.

Page

United States v. West Coast News, Inc., 357 F.2d

855 (6 Cir. 1966) .............nceeceecenceecsrcsnnseaneens 85

United States v. Whitted, 325 F.Supp.520 (D.C.

Beta BFL). ocsccccxesacsttcscsncssvnsioocsnneabonnceenboees 100, 101

Weaver v. Palmer Bros. Co., 270 U.S.402 .......... 23

Whitus v. Georgia, 385 U.S.545 ..........--..0-ee-ee-e0+ 89

Williams v. Florida, 399 U.S.78 .......-....--esseee---e0* 92

Winship, In re, 397 U.S.358 ..........----.-s-eseeeeenerees 72

Winters v. New York, 333 U.S.507 ...... 9,32. 3S

Witherspoon v. Illinois, 391 U.S.510 ..........---------- 92

Ziegler v. United States, 174 F.2d 439 (9 Cir.

1949), cert. denied 338 U.S.822 ..............-----+-- 86

Dictionary

Webster’s Third New International Dictionary,

Unabridged (G.&C. Merriam Co. 1967) ...... 26

Miscellaneous

34 American Law Institute Proceedings (1957),

PP. 191, 192 .........-----ceceneneecenenessensenennenenendones 9% 93

Hearings Before Subcommittee No. 3 of the Com-

mittee on the Judiciary, House of Representa-

tives, Ninety-First Congress, on H.R.5171, H.R.

11009, H.R.11031, H.R.11032, and related

measures, Serial No. 21 (pp. 37-38, 46-47) ...... 30

The Commission Report ...... 12, 57, 60, 61, 64, 70

The Illustrated Presidential Report of the Com-

mission on Obscenity and Pornography, Green-

leaf Classics, Inc., p. 356 ................ iw fh

esti 56, 58, 59, 60, 61, 62, 63, 64, 66, 70, 94

The Los Angeles Times (June 9, 1973) ............ 27

Page

Report of the Senate Post Office and Civil Service

Commission [Senate Report, No. 801] ............ 55

2 United States Congressional and Administrative

News (90th Cong. First Sess. 1967), p. 2295 .. 55

Rules

Federal Rules of Civil Procedure, Sec. 51 .......... 83

Federal Rules of Criminal Procedure, Rule 30. 3

ANSE os Ce BL BES 7 wa te te Fh, 78,2

ARC ade ORE ut MEPS GO ree EO 80, 81, 82, 83, 85

Statutes

United States Code, Title 18, Sec. 2 ...... ‘3-6 3

United States Code, Title 18, Sec. 371 -......4, 5, 6, 7

United States Code, Title 18, Sec. 1461 ....2, 3, 4

shdchpigitennibiaeetines ay Gy. Ty Se Oe. 36, 27,22, 23,

sissalichciantin sonpecsenciii 25, 28, 29, 34, 36, 41, 42, 43

ia 44, 45, 46, 48, 52, 56, 85

United States Code, Title 18, Sec. 1462 ............ 25

United States Code, Title 18, Sec. 1465(2) .. 38

United States Code, Title 18, Sec. 1861 .......... 22, 91

United States Code, Title 28, Sec. 46(b) .......... 27

United States Code, Title 28, Sec. 1254(1) ........ 2

United States Code, Title 39, Sec. 3008 ..54, 55, 56

United States Code, Title 39, Sec. 3008(a) ........ 55

United States Constitution, First Amendment ..2, 3

SOLE EMSs iter! 4, 5, 6, 8, 16, 18, 19, 21, 22, 24, 32

eae TORE OL 33, 45, 50, 52, 54, 58, 59, 74, 93

United States Constitution, Fifth Amendment ...... 2

woh 3; 46, 4 i 22, ee, GC, SM, 87, 9

United States Constitution, Sixth Amendment ... 3

cen 4, 5, 6, 8, 22, 24, 39, 87, 98

Page

United States Constitution, Eighth Amendment .. 4

snccesnnnecccenccsarensenensceseseasatecssnsnnnacsensees Se 2, 2a, ae

United States Constitution, Fourteenth. Amend-

ment

Supreme Court of the United States

October Term, 1973

No. 73-507

WittiaM L. Hamiinc, Eart Kemp, SHIRLEY R.

Wricht, REED ENTERPRISES, INC, Davw L.

THomas, and Liprary SERVICE, INC.,

, Petitioners,

vs.

UNITED STATES OF AMERICA;”

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit.

Brief for Petitioners Hamling, Reed Enterprises, Inc.

and Library Service, Inc.

Opinion Below.

The opinion of the Court of Appeals is reported

at 481 F.2d 307 and appears in Appendix A to the

Petition for Writ of Certiorari, pages 1 through 38.

Jurisdiction.

The judgment of the Court of Appeals for the

Ninth Circuit was entered on June 7, 1973. A due

and timely petition for rehearing and suggestion for

rehearing en banc was filed on or about June 18, 1973.

On August 22, 1973, an order was entered stating that

ak, He :

the aforesaid petition “will be submitted to the full

court”. A copy of the said order appears in Appendix

B to the Petition for Writ of Certiorari, pages 39

and 40. On August 23, 1973, an order was entered

denying the petition for rehearing and rejecting

the suggestion for a rehearing en banc. A copy of the

said order appears as Appendix C to the Petition for

Writ of Certiorari, page 41. On August 28, 1973,

the Honorable Stanley N. Barnes, a Judge of the

United States Court of Appeals for the Ninth Circuit,

made an order staying issuance of the mandate of the

court pending the filing, consideration and disposition

by this Court of a Petition for a Writ of Certiorarj

on or before September 24, 1973. A copy of the said

order appears as Appendix D to the Petition for Writ

of Certiorari, page 42. The Petition was filed on Sep-

tember 8, 1973 and granted on January 14, 1974. Ju-

risdiction of this Court rests on 28 U.S.C. § 1254(1).

Questions Presented.

1. Whether the provisions of Title 18 United States

Code §1461, on their face and as construed and ap

plied to petitioners’ pre-June 21, 1973 conduct, vio-

lated the guarantees of the First and Fifth Amendments

to the United States Constitution, because they failed

to provide “fair notice” or “concrete guidelines” as to

what sexual expression was prohibited by the provi-

sions of the statute.

2.. Whether, in light of this Court’s June 21, 1973

rulings, the Indictment herein is fatally defective be-

cause it failed to inform petitioners of the nature and

1An y was ogg esas on a Me ee the

petition was thereafter, order court,

withdrawn on July 18, 1973. : . oe

—3—

cause of the accusations against them in violation of

the provisions of the Sixth Amendment.

3. Whether the provisions of Title 18 United States

Code §1461, on their face and as construed and ap-

to authorize the jury to measure the prurient

appeal of the brochure by its impact on undefined sexu-

ally deviant groups rather than solely by its impact

on the average person in the Nation as a whole,

violated the free speech and press provisions of the

First Amendment and the due process provisions of

the Fifth Amendment.

4. Whether the provisions of Title 18 United States

Code §1461, on their face and as construed and ap-

plied, violate the free speech and press provisions of

the First Amendment and the due process provisions

of the Fifth Amendment, because the trial court in-

structed the jury that it could find the brochure ob-

scene even if the brochure did not meet the Roth-

ment.

‘6. Whether petitioners were denied a fair trial, and

due process of law, when the trial court, in open de-

fiance of Rule 30, Federal Rules of Criminal Proce-

dure, denied petitioners the opportunity to make ob-

jections to the court's jury charge outside the presence

7. Whether petitioners were denied a fair trial by

an impartial and representative jury, in violation of

| the guarantees of the Fifth and Sixth Amendments.

sind

8. Whether the provisions of Title 18 United States

Code §§2, 371 and 1461, on their face and as con.

strued and applied to authorize the judgments of con.

viction herein, where the Indictment was returned by a

Grand Jury which was presented with no evidence of

the essential elements of the offense charged which

was misdirected by the prosecutor as to the applicable

law, and where the prosecutor appealed to the biases

and prejudices of the members of the Grand Jury,

abridge the exercise of freedoms of speech and press,

arbitrarily deprive petitioners of their liberty and prop. °

erty without due process of law, discriminatorily deny

the equal protection of the laws, deny the right to a

fair trial and constitute the infliction of cruel and

unusual punishment in violation of the First, Fifth,

Sixth and Eighth Amendments.

9. Whether the provisions of Title 18 United States

Code §§2, 371 and 1461, on their face and as con-

strued and applied to authorize the judgments of con-

viction herein, under a ‘standard for judging scienter

solely by alleged proof of knowledge of the “contents”

of the brochure involved, the courts below having re-

jected any requirement of proof of knowledge of the

alleged obscenity of the brochure or proof of reckless

disregard of the alleged obscenity, or intent to com-

mit a public wrong, and specifically rejecting a de-

fense of honest ignorance of the alleged obscenity of

the brochure, abridge the exercise of freedoms of speech

and press, arbitrarily deprive petitioners of their liber-

ty and property without due process of law, discrim-

inatorily deny the equal protection of the laws, deny

the right to a fair trial and constitute an infliction of

cruel and unusual punishment in violation of the First,

Fifth, Sixth and Eighth Amendments.

saclibiin

- 10. Whether the provisions of Title 18 United

States Code §§2, 371 and 1461, on their face and

as construed and applied to authorize the judgments of

conviction herein, without any evidence to establish

that each of the petitioners even possessed knowledge of

the alleged contents of the brochure, abridge the exer-

cise of freedoms of speech and press, arbitrarily de-

prive petitioners of their liberty and property without

due process of law, discriminatorily deny the equal pro-

tection of the laws, deny the right to a fair trial and

constitute the infliction of cruel and unusual punish-

ment in violation of the First, Fifth, Sixth and Eighth

Amendments...

11. Whether the provisions of Title 18 United

States Code §§2, 371 and 1461, on their face and

as construed and applied to authorize the judgments of

conviction herein, without proof of the essential ele-

ments of obscenity and scienter, or proof of corrupt

agreement or aiding and abetting or causation by pe-

titioners, under both the conspiracy and substantive

counts of the Indictment, abridge the exercise of free-

doms of speech and press, arbitrarily deprive petitioners

of their liberty and property without due process of

law, discriminatorily deny the equal protection of the

laws, deny the right to a fair trial and constitute the

infliction of cruel and unusual punishment in viola-

tion of the First, Fifth, Sixth and Eighth Amend-

ments. :

12. Whether the provisions of Title 18 United

States Code §§2, 371 and 1461, on their face and

as construed and applied to authorize the judgments of

conviction herein, where the trial court excluded an

entire category of constitutionally relevant evidence of-

fered by petitioners on the issues of nonobscenity of

a

the brochure and lack of guilty knowledge, abridge

the exercise of freedoms of speech and press, arbi-

trarily deprive petitioners of their liberty and property

without due process of law, discriminatorily deny the

equal protection of the laws, deny the right to a fair

trial and constitute the infliction of cruel and unusual

punishment in violation of the First, Fifth, Sixth and

Eighth Amendments.

This Brief deals with Questions | through 8, in-

clusive. The companion Brief filed on behalf of pe-

titioners Earl Kemp, Shirley R. Wright and David L.

Thomas deal with Questions 9 through 12, inch-

sive. Petitioners herein incorporate by reference as

though fully set forth herein the argument made in the

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First, Fifth, Sixth

and Eighth Amendments; Title 18 United States Code

§§2, 371 and 1461; and Rule 30 of the Federal Rules

of Criminal Procedure appear in Appendix E to the

Petition for Writ of Certiorari, pages 43 through 46.

Statement.

1. The Indictment was returned on March 5, 1971.

The brochure at issue was mailed on specified dates in

December of 1970 and January 1971. The judgments

of convictions were entered in the District Court on

February 7, 1972. The judgments of conviction were

affirmed on June 7, 1973. The Indictinent, the trial

thereunder, the judgments of conviction and the af-

firmance of said judgments rest upon standards which

existed prior to the rulings of this Court on June 21,

‘ceili

1973 in Miller v. California, 413 U.S. 15, and the

related cases.

2. The Indictment [J.A. 14-31]* charged the in-

dividual and corporate petitioners with violations of

18 U.S.C. §§2 and 1461, and a conspiracy to violate

the said statutes, contrary to the provisions of 18

US.C. §371. Although the Indictment was in 21

counts, the works involved were two in number. One

item was a book entitled The Illustrated Presidential

Report of the Commission on Obscenity and Pornog-

raphy (hereinafter referred to as “The Illustrated Re-

port”). The other item was a brochure advertising the

book. Essentially, the Indictment charged that the book

was “obscene, lewd, lascivious, indecent, filthy and

vile”; that the brochure similarly violated the federal

obscenity statute; and, in addition, that the brochure

gave information where, how, from whom and by what

means The Illustrated Report might be obtained, in

sist

grounds, inter alia, that the Indictment failed to allege

the essential elements of obscenity and therefore failed

to state facts sufficient to constitute an offense against

the United States, and that §1461, on its face and

as construed and applied, violated the free speech and

press, due process and equal protection provisions of

the First, Fifth and Sixth Amendments, and the cruel

and unusual punishment provisions of the Eighth

Amendment [J.A. 32-34]. Petitioners argued that the

statutory terminology, repeated inthe Indictment, was,

standing by itself, essentially meaningless, and that this

Court had not yet given the statutory language “a

settled meaning”.

Petitioners also filed a motion for a bill of particu-

lars which requested the Government to state “the es-

sential elements” of the term “obscene” [J.A. 35-38].

The Government responded that for purposes of argu-

ment it would assume “that the three-fold test, as

enumerated in the plurality opinion in Memoirs y.,

Massachusetts, 383 U.S.413, 418, is the appropriate

standard” [J.A. 44-45].

In connection with a separate motion to dismiss

the Indictment because of matters occurring before the

Grand Jury, a pre-trial evidentiary hearing elicited

testimony from the prosecutor who presented the case

_to the Grand Jury [R.T. 13-14] that he had advised

the Grand Jury to be “guided solely by their instinc-

tive feeling” [R.T. 19-20]; that they were to be guided

by the standards of “moral judgment” which they had

“assimilated through the totality of their experiences”

[R.T. 20-21]; that they were “the sole judges of the

contemporary community standards of this country”

and that the term “contemporary community stand-

a

ards” refers to “the average conscience of the time”

{R.T. 33]. Although the prosecutor was not sworn

before the Grand Jury, he detailed to that body the

factual situation in Ginzburg v. United States, 383

U.S.463, placing particular emphasis on a publication

involved in that case; discussed the extent of sales of

the book involved in the Ginzburg case and the ad-

vertisement for the said book; “drew a parallel” be-

tween the Ginzburg case and the case at bar; and ad-

vised the Grand Jury that “we felt that the facts in this

case were similar enough to those in the Ginzburg case

to present [the matter to the Grand Jury] to see if

they felt there was probable cause to believe that a

Ginzburg-type situation was present [in the case at

bar]” [R.T. 28-29]. ;

Petitioners moved to strike the jury venire and chal-

Nenged the jury panel upon the ground, among others,

of a systematic exclusion of an identifiable group with-

in the community, i.e., persons 25 years of age and

under [J.A. 65-70]. The hearing before the trial court

on this issue established that the master wheel from

which the trial jury was drawn was filled in 1968 with

the names of then registered voters. In 1971, there-

fore, the venire from which the trial panel was drawn

contained no persons under 24 years of age and very

few under 25 years of age [R.T. 73-74]. Petitioners

offered evidence establishing that young persons were

a cognizable group and more tolerant than older per-

sons in matters relating to the depiction of explicit

sexual materials [R.T. 85-86]. The Clerk of the court

testified that the master wheel was to be refilled in

about one month [R.T. 94-98]. Although the trial

court conceded that petitioners would have benefited

by having jurors on the panel in the age group 18-25

ee

a

[R.T. 91-92] and that the evidence presented indi-

cated that “it is time to change the jury master wheel”

[R.T. 93], it nevertheless denied the motion to strike

the jury panel [J.A. 5]. Thereupon, petitioners moved

for a short continuance, of approximately one month,

so that their jury would be drawn from a master wheel

that included persons 21 years of age or over [R.T.

95-98]. This motion was denied [J.A. 5].

The entire voir dire examination was conducted by

the trial court [R.T. 99, 137-164, 166-314]. The court

declined to ask many of the questions proposed by

petitioners. Among the questions petitioners unsuccess-

fully urged the court to ask the prospective jurors were

the frequency with which they attended a place of

worship and whether they considered themselves deeply

religious; whether they recently had heard a sermon at

their place of worship dealing with the subject of

obscenity; whether they had ever been a member of or

made contributions to the Citizens for Decent Litera-

ture, or any other organization having as one of its

purposes the control by law of obscene material;

whether they had recently seen a film or read a book

dealing candidly with sexual matters; and whether they

would refrain from viewing a film solely because it was

condemned by a publication known as “The Catholic

Newsletter” [J.A. 78-81].

4. On the issue of “obscenity”, the Government

called only two witnesses. Dr. Melvin Anchell, a Medi-

cal Doctor and/a self-proclaimed psychiatrist without

Board certification [R.T. 1606-1609, 1629-1631],

testified that in his opinion the dominant theme of the

brochure was “pruriency” [J.A. 147]. His total testi-

mony concerning the brochure consisted of that single

Sey,

pes ie

word. The trial court recognized that Dr. Anchell

was “rigid” [R.T. 2174].

The Government’s other expert witness was a Mr.

Frank Getlein, a newspaper man. He testified that in

his opinion the brochure was a miniature of The Il-

lustrated Report and was patently offensive and was

utterly without redeeming social value [J.A. 148-151].

Petitioners called four expert witnesses, each of

whom testified that the brochure had redeeming social

value: Dr. Otto N. Larsen, one of the Commissioners

of the Commission on Obscenity and Pornography;

Dr. W. Cody Wilson, the Executive Director and Direc-

tor of Research of the Commission; Dr. Jack Haber-

stroh, Assistant Professor of Journalism at the San

Diego State College; and Professor Dwight V. Swain,

a Professor of Journalism and Literature.

Commissioner Larsen and Dr. Wilson also testified

that the brochure did not appeal to “prurient interest”

and that it did not go beyond “customary limits of

candor” in sexual matters and was not patently of-

fensive [J.A. 193-194, 167-169, 170-172, 175, 184-

185}.

The Government did not put on any rebuttal evi-

dence.

It should be observed that the brochure advertised

the book, The illustrated Report, and that a consider-

_ able portion of the evidence offered by both the Gov-

ernment and petitioners revolved about the question

of the alleged obscenity of nonobscenity of the book,

an issue upon which the jury could not agree. It was

stipulated by the Government during the trial, that

every picture in The Illustrated Report was related to

the text of The Commission Report; that pictures simi-

ae

lar to those appearing in the book were used in various

research activities that the Commission undertook: that

the photographs and other illustrations in The Illus.

trated Report depicted explicit sexual material within

the definition of that term as it was used by the Com.

mission in its Report; and that every picture in The

lilustrated Report was similar to some of the material

used by some of the researchers in The Commission

Report [J.A. 163-165]. Each of the depictions con.

tained in the brochure advertising The Illustrated Re.

‘ port appears in the said book, and the statement in

the brochure with respect to the probability that the

scenes depicted in the brochure were part of the photo-

graphs used in one of the studies for the Commission

appears to be accurate, in the light of the stipulations

by the Government during the trial.

5. Despite the absence of any charge in the In-

that even if the brochure did not meet the tripartite

Memoirs test, still the jury was free to find the bro-

if the jury found that the brochure

was “produced and sold as stock in trade of the busi-

ness of pandering” [J.A. 245]. The “pandering” in-

structions by the trial court to the jury were exten

sive [J.A. 242-246]. It is important to note that after

dering” [R.T. 4989-4990].

The trial court instructed the jury: “Prurient inter-

est is a shameful or morbid interest in sex or nudity

and you must measure this appeal by the average or

ordinary adult or by a clearly defined deviant group

as will be explained elsewhere” [J.A. 238-239]. The

er

trial court then addressed itself to the two aforesaid

alternatives. The court first instructed the jury that the

brochure could be measured by its appeal to the aver-

age adult and not by young persons or persons highly

susceptible thereto [J.A. 239]. The court also in-

structed the jury that if some of the material appealed

to the prurient interest of the average person and

some of the material appealed to the prurient interest

of a deviant sexual group, still\the jury would not be

precluded from finding that the dominant theme of

the material, taken as a whole, appealed to the pru-

rient interest [J.A. 240-241]. The trial court, on the

other hand, instructed the jury that “in addition to

considering the average or normal person, the prurient

appeal requirement may also be assessed in terms of

sexual interest of the intended or probable recipient

group” [J.A. 239].

There was never any charge in the Indictment nor

any proof in the record that the brochure herein was

designed for or primarily disseminated to a clearly de-

fined sexually deviant group rather than the public at

large.

To all of the aforesaid denials of petitioners’ request-

ed instructions, and to the trial court's instructions,

there were appropriate objections made by the peti-

tioners.

6. Rule 30 of the Federal Rules of Criminal Pro-

cedure provides that a party may not assign as ¢rror

any portion of the charge to the jury unless he objects

before the jury retires to consider its verdict. The Rule

specifically provides that opportunity shall be given to

make the objection out of the hearing of the jury and,

on request of any party, out of the presence of the

jury.

aa, Ye

After the court instructed the jury, counsel for peti-

tioners stated a desire to object to portions of the

charge and specifically urged the trial court to ask the

jury to go into the jury room while petitioners’ objec-

tions were presented. The trial court denied the re

quest [J.A. 257]. Thereafter, counsel was compelled

to make objections to the trial court’s instructions in

the presence of the jury. The objections were wide

ranging and covered a multitude of areas in which

had been given. All of these objections counsel was

compelled to make in the presence of the jury [J.A.

258-265}.

7. There were appropriate motions made by peti-

tioners for judgments of acquittal at the end of the

Government’s case and at the end of the entire case,

and there were also post-trial motions in arrest of judg-

ment, for a new trial, and for acquittal. All of the said

motions were denied.

As heretofore stated, the jury could not agree on

a verdict with respect to The Illustrated Report. The

jury reached a verdict of guilty only with respect to

the alleged obscenity of the brochure, both on the

conspiracy and substantive counts. Judgments of con-

viction were entered on February 7, 1972. The peti-

tioner Hamling was sentenced to imprisonment for four

years and fined $32,000; petitioner Kemp was sen-

tenced to imprisonment for three years and one day;

petitioner Wright was sentenced to imprisonment for

one and one-half years, execution of the sentence sus-

pended, and petitioner placed on probation for a pe-

riod of five years; and petitioner Thomas sentenced to

imprisonment for one and one-half years, execution of

the sentence suspended, and petitioner placed on pro-

= scien

“pation for a period of five years. The conditions of

probation were extremely onerous. A fine of $43,000

was imposed on petitioner Reed “Enterprises, Inc., and

‘a fine of $12,000 was imposed on petitioner Library

Servi Inc. Bail for petitioner Hamling was fixed in

the sum of $15,000; for petitioner Kemp, in the sum

‘of $10,000; and for each of the petitioners Wright

and Thomas, in the sum of $1,000. The said bail was

furnished and petitioners were freed on bail pending

appeal [J.A. 11-13].

8. As appears from the opinion of the Court of

Appeals, the judgments of conviction were affirmed.

The court held that 18 U.S.C. §1461 was not uncon-

stitutionally vague and that the use of the statutory lan-

guage in the Indictment did not fail to advise peti-

tioners of the charge which they were called upon to

defend. The court held that the Indictment herein,

framed in the language of the statute, was not in-

definite or vague.

Petitioners herein have omitted from the Statement

of the case that portion related to the issues briefed

in the companion brief filed on behalf of petitioners

Earl Kemp, Shirley R. Wright and David L. Thomas,

and the petitioners herein adopt by reference the State-

ment of the case, together with the argument and the

points of fact and law presented in the brief filed by

said petitioners Kemp, Wright and Thomas.

In light of Miller v. California, 413 U.S.15, and

the related cases, the federal criminal statute involved

charged publications appeal to the prurient inter-

est of the average person in the Nation as a whole,

which test this Court labeled “unrealistic”;

4. prior to June 21, 1973, the statute had

been authoritatively construed as requiring proof

of the statute, petitioners note that this criminal statute

must be scrutinized in light of the strict standards of

permissible statutory vagueness applied to a statute

having a potentially inhibiting effect on speech and

the particularly stringent standards applicable to a fed-

eral obscenity statute.

In Miller, Chief Justice Burger made it clear that

the federal and state standards were quite different by

citing Justice Harlan’s opinions wherein he repeatedly

argued for tight federal obscenity laws and looser state

laws. (413 U.S. at 29).

The distinction was initially articulated by Justice

Harlan dissenting in Roth and concurring in Alberts,

354 U.S. at 503-508.

ernment has in this field are but incidental to its

other powers, here the postal power, and are not

of the same nature as those possessed by the

States, which bear direct responsibility for the

protection of the local moral fabric.”

saat

Justice Harlan went on to say that not only is th

federal. interest in protecting the Nation against por.

nography attenuated, “but the dangers of federal cen.

sorship in this field are far greater than. anything th

States may do.” Justice Harlan asserted that he would

judge a federal obscenity case against the backgrouni

of “the attenuated federal interest in this field” and

in view of the “very real danger of a deadening un:

formity which can result from nationwide federal cer-

sorship.” (Jd.)

In Jacobellis v. Ohio, 378 U.S.184, Justice Harlan,

dissenting, expressed the view that the States are const-

tutionally permitted greater latitude in determining what

is bannable on the score of obscenity than is so with the

Federal Government. “The more I see of these obsceni-

ty cases the more convinced I become that in permit-

ting the States wide, but not unrestricted,

scope in this field, while holding the Federal Govern-

ment with a tight rein, lies the‘ best promise for achiey-

ing a sensible accommoda between the public in-

terest sought to be served by obscenity laws . . . and

protection of genuine rights of free expression.” (378

U.S. at 203-204).

In Miller, Chief Justice Burger cited with approval

the dissenting opinion in Hoyt v. Minnesota, 399 US.

524, 525, where Justice Blackmun stated that he was

not persuaded that the First and Fourteenth Amend-

ments necessarily prescribe a national and uniform

measure of what each of our several States constitu-

tionally may do to regulate obscene products within

its borders. “At this still, for me, unsettled stage in

the development of state law of obscenity in the federal

constitutional context I find myself generally in ac

ontstillbican.

‘cord with the views expressed by Mr. Justice Harlan

_.. and with those enunciated by the Chief Justice in

Cain v. Kentucky, 397 U.S.319 . . . and in Walker v.

Ohio, 398 U.S.434.” (Emphasis added).

This Court has always held that “stricter standards

of permissible statutory vagueness may be applied to

a statute having a potentially inhibiting effect on

speech; a man may the less be required to act at his

peril here, because the free dissemination of ideas may

be the loser.” Smith v. California, 361 U.S.147, 151.

This rule was recognized in Miller, where the Court

cited Interstate Circuit, Inc. v. Dallas, 390 U.S.676,

682-685, for the proposition that when First Amend-

ment rights are at stake, “precision of regulation must

be the touchstone”. Chief Justice Burger recognized

“the inherent dangers of undertaking to regulate any

form of expression”, saying that state statutes designed

to regulate obscene materials “must be carefully limited.

See, Interstate Circuit, Inc. v. Dallas, supra, 390 U.S.

682, 685. . . .” (413 U.S. at 23-24). In Interstate

Circuit, the Court discussed with approval Winters v.

New York, 333 U.S.507, where the Court struck down

as vague and indefinite a standard pursuant to which

publications were condemned if they contained “crimi-

nal news or stories of deeds of bloodshed or lust, so

massed as to become vehicles for inciting violent and

depraved crimes”. In Interstate Circuit, the Court also

cited with approval Burstyn v. Wilson, 343 U.S.495;

Gelling v. Texas, 343 U.S.960; Superior Films, Inc. v.

Dept. of Education, 346 U.S.587; Commercial Pictures

Corp. v. Regents, 346 U.S.587; Holmby Productions,

Inc. v. Vaughn, 350 U.S.870; and Kingsley Int'l. Pic.

Corp. v. Regents, 360 U.S.684. These cases had con-

——20-—

demned as unconstitutionally vague the following

standards:

“Sacriligious”, which was found to have such

an all-inclusive definition as to result in ‘substan-

tially unbridled censorship”.

“Of such character as to be prejudicial to the

best interest of the people of the city”.

_“Morally educational, or amusing and harm-

less”.

“Immoral” and “tend to corrupt morals”.

“Approve. such films . . . [as] are moral and

proper; . . . disapprove such as are cruel, ob-

scene, indecent or immoral, or such as tend to

debase or corrupt morals”.

“Unless such film or a part thereof is obscene,

indecent, immoral, inhuman, sacriligious, or is of

such a character that its exhibition would tend to

corrupt morals or incite to crime. . . .”

In Interstate Circuit, the Court approved Justice

Clark’s concurring remarks in Kingsley Int'l. Pic. Corp.

v. Regents, 360 U.S. at 701, where he stated: “The

only limits on the censor’s discretion is his understand-

ing of what is included within the term ‘desirable, ac

ceptable or proper.’ This is nothing less than a roving

commission in which individual impressions become

the yardstick of action, and result in regulation in ac

cordance with the beliefs of the individual censor

rather than regulation by law. . . .” In Miller, Chief

Justice Burger observed that the obscenity problem

had evoked a variety of views among the members of

the Court unmatched in any other course of constitu

tional adjudication, and added; “This is not remark-

able, for in the area of freedom of speech and press

jill

the courts must always remain sensitive to any infringe-

ment on genuinely serious literary, artistic, political, or

scientific expression. This is an area in which there

are few eternal verities.” (413 U.S. at 22-23). In

NAACP y. Button, 371 U.S.415, the Court said that

the objectionable quality of vagueness and overbreadth

is the danger of tolerating, in the area of First Amend-

ment freedoms, the existence of a penal statute suscep-

tible of sweeping and improper application. “These _

freedoms are delicate and vulnerable, as well as su-

premely precious in our society. The threat of sanc-

tions may deter their exercise almost as potently as the

actual application of sanctions. Cf. Smith v. California,

361 U.S at 151-154; Speiser v. Randall, 357 US.513,

526. Because First Amendment freedoms need breath-

ing space to survive, government may regulate in the

area only with narrow specificity.” (371 U.S. at 432-

433). See, Marcus v. Search Warrants, 367 U.S.717,

733; Bantam Books, Inc. v. Sullivan, 372 U.S.58, 65;

Stanley v. Georgia, 399 U.S.557, 566.

The “vice of vagueness” is especially pernicious

where, as here, legislative power over an area involving

speech, press, petition and assembly is involved. “For

a statute broad enough to support infringement of

speech, writings, thoughts and public assemblies,

against the unequivocal command of the First Amend-

ment necessarily leaves all persons to guess just what

the law really means to cover, and fear of a wrong

guess inevitably leads people to forego the very rights

the Constitution sought to protect above all others.

_. ” Barenblatt v. United States, 360 U.S. 109, 137-

138 (Black, J., dissenting).

With these principles in mind, petitioners turn to the

record in the case at bar.

ii

From first to last, petitioners contended that the

provisions of §1461 failed to provide persons of ordi-

nary intelligence a reasonable opportunity to know what

the statute prohibited so that they may act accordingly,

In their motion to dismiss the Indictment, petitioners

contended that §1461, on its face and as construed

and applied, was vague, uncertain, ambiguous, over.

broad and violative of the free speech and press, due

process and equal protection provisions of the First,

Fifth and Sixth Amendments andythe cruel and un-

usual punishment provisions of the Eighth Amendment

[J.A. 32-35].

Petitioners requested an evidentiary hearing in con-

nection with their motion to dismiss the Indictment,

stating that they intended to prove by expert testimony

and other oral and documentary evidence that it is

impossible for persons of ordinary intelligence to know

with reasonable certainty what conduct on their part

brings them within the ambit of 18 U.S.C. §1861

[C.T. 134]. They also asseeted that they would show

that there is “no such thing as contemporary com-

munity standards in the Nation as a whole with regard

to matters of sex, nudity and excretion”, and that there

is “no average person in the Nation as a whole against

which to determine whether particular material ap-

peals to the prurient interest of the average person”

[C.T. 135]. Petitioners offered to show “by extrinsic

evidence that, in fact, the statute is unconstitutionally

vague, because persons of ordinary intelligence, and

indeed persons of extraordinary intelligence, are un-

able to determine in advance what is obscene and vio-

lative of the Section.” [C.T. 137].

In connection with the said motion, petitioners sub-

mitted an affidavit of Dr. Jay Ziskin, a clinical psychol-

snail

ogist, a professor and a licensed attorney [J.A. 49].

‘After setting forth his qualifications, Dr. Ziskin gave

his opinion that the tests for judging obscenity were

vague, incomprehensible and incapable of objective

measurement. He stated that “with regard to the type

of sexual stimuli responded to and the manner or na-

ture of the response, there appears to be such a wide

variety of responses in the American population as

to preclude any meaningful application of the term

‘average’.” He also asserted that whether material goes

substantially beyond contemporary community stand-

ards will depend on the geographic character, and com-

position of the “community”, and who the person is

who purports to determine what “community stand-

ards” are. The limits of candor among young people

appear to be considerably different from those exist-

ing among older people. By way of conclusion, Dr.

Ziskin stated that the definition of obscenity “is not one

which can be applied by ordinary individuals, includ-

ing those most concerned, such as booksellers, law

enforcement officials and jurors. There is, in fact, no

body of knowledge by which experts such as behavior

scientists and mental health professionals can make a

determination that a given work appeals predominant-

ly to prurient interest of the average person. There is

a body of research, mostly contained in the Report of

the Commission on Obscenity and Pornography, which

strongly suggests that the definition is one which cannot

be met [J.A. 49-59]. The trial court denied petitioners

an evidentiary hearing to support their allegation that

$1461 was unconstitutionally vague. See, Borden's

Farm Products Co., Inc. v. Baldwin, 293 U.S.194, 209-

213: Chastleton Corp. v. Sinclair, 264 U.S.543, 547-

549; Weaver v. Palmer Bros. Co., 270 U.S.402, 410;

oe.

Nashville C.&S.L.Ry. v. Walters, 294 U.S.405, 414

416; Polk Co. v. Glover, 305 U.S.5, 9-10.

Following conviction herein, petitioners moved in

arrest of judgment, again alleging that 18 U.S.C. §1461,

on its face and as construed and applied, violated the

free speech, equal protection, due process and cruel and

unusual punishment provisions, in violation of the First,

Fifth, Sixth and Eighth Amendments [J.A. 11]. This

motion was denied [J.A. 11].

In response to petitioners’ attack on the vagueness

of §1461, the court below said: “The language of

Section 1461 does not offend constitutional safeguards

. + » Or fail to give men in acting adequate notice of

what is prohibited. Roth v. United States, 354 US.

476, at 491-492.” (481 F.2d at 312). Two weeks

later, this Court said, in United States v. 12 200-Ft.

Reels, 413 U.S.123, 130, n.7: “If and when... a

‘serious doubt’ is raised as to the vagueness of the

words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’

or ‘immoral’ as used to describe regulated material . . .

we are prepared to construe such terms as limiting reg-

ulated material to” the kind mentioned in Miller y.

California, 413 U.S.15, 24.* (Emphasis added).

In Miller, the Court recognized the need to “for-

mulate standards more concrete than those in the past”

(413 U.S. at 20). The need was manifest because

the Court had formulated a variety of views on obscen-

“In O’Shea v. grey ed US. ...., 94 S.Ct.669, Justice Black-

mun stated that this is powerless to render an advisory

opinion, citing Hayburn’s Case, 2 Dall. 409 (1792); United

States v. Evans, 213 U.S.297, 301 (1909); Muskrat v. United

States, 219 U.S.346, 360-361 (1911); Stearns v. Wood, 236

U.S.75 (1915); Coffmen v. Breeze Corps, 323 U.S.316 (1945);

United Public Workers v. Mitchell, 330 U.S.75 (1946); Paschal

v. Christie-Stewart, Inc., 414 U.S. ...., 94 §.Ct.312.

SAG su

Se Sak

on a

ity “unmatched in any other course of constitutional

adjudication”. |

_ Following judgment herein, a different panel of the

Ninth Circuit, after examining this Court’s opinions of

June 21, 1973, concluded that §1462 was, prior to

June 21, 1973, “vague, ambiguous and essentially mean-

ingless”. United States v. Henson, ...... F.2d ...... (9

Cir., No. 73-2063, Oct. 5, 1973).

A. At the time petitioners allegedly mailed the

brochure in question, §1461 failed to provide “fair

notice” or “concrete guidelines” as to what sexual ex-

pression was prohibited by the said statute.

1. Prior to June 21, 1973, §1461 Was Unconstitutionally

Vague, Because It Failed to Contain a Description of the

Sexual Conduct Miller Held Was Constitutionally Man-

dated and the Statute Had Not Received a Prior Authorita-

tive Construction Reading the Necessary Terminology Into

the Statute.

In Miller, 413 U.S. at 23-24, the Court said that

“statutes designed to regulate obscene materials must be

carefully limited. . . . As a result we now confine the

permissible scope of such regulation to works which

depict or describe sexual conduct. That conduct must

be specifically defined by the applicable state law, as

written or authoritatively construed.” Subsequently, the

Court said that under “the holdings announced to-

day, no one will be subject to prosecution for the sale

or exposure of obscene materials unless these materials

depict or describe patently offensive ‘hard core’ sexual

conduct specifically defined by the regulating state

law, as written or construed. We are satisfied that these

specific prerequisites will provide fair notice.” (413

US. at 27). “Prerequisite” is defined as something

7

that is “required beforehand; necessary as a prelim.

inary condition.” Webster’s Third New International

Dictionary, Unabridged (G.&C. Merriam Co. 1967).

Justice Brennan, dissenting in Paris, stated that when

an obscenity statute, such as the one at bar, failed to

contain the required description of prohibited conduct,

the statute could not stand.

“While the Court’s modification of the Mem.

oirs test is small, it should still prove sufficient

to invalidate virtually every state law relating to

the suppression of obscenity. For under the Court's

restatements, a statute must specifically enumer-

ate certain forms of sexual conduct, the depiction

of which is to be prohibited. It seems highly doubt-

ful to me that state courts will be able to con-

strue state statutes so as to incorporate a careful-

ly itemized list of various forms of sexual con-

duct, and thus to bring them into conformity with

the Court’s requirements. Cf. Blount v. Rizzi,

400 U.S. 410, 419 (1971). The statutes of at

least one State should, however, escape the whole-

sale invalidation. Oregon has recently revised its

statute to prohibit only the distribution of obscene

materials to juveniles or unconsenting adults. The

enactment of this principle is, of course, a choice

constitutionally open to every State even under the

Court's decision.” (413 U.S. at 95, n.13.)

The Chief Justice did not agree with Justice Bren

nan’s views. “We do not hold . . . that all States other —

than Oregon must now enact new obscenity statutes. —

Other existing state statutes, as construed heretofore

or hereafter may well be adequate.” (413 U.S. at 24 —

n.6.) (Emphasis added.) In. discussing the kind of —

onan

statute he had in mind, the Chief Justice pointed to

Oregon and Hawaii statutes “as examples of state laws

directed at depiction of defined physical conduct, as

opposed to expression. (id.)

In its opinion affirming the judgment herein, the

court below had no occasion to consider the impact of

Miller, since its opinion was filed two weeks before

Miller was decided.’ Other courts have suggested, how-

ever, that the statute’s deficiency could be saved by an

authoritative retroactive construction. In United States

vy. Thevis, 484 F.2d 1149, 1155 (5 Cir. 1973), the

Court stated: “On its face, this statutory terminology

[fobscene, lewd, lascivious or filthy] does not contain

the specifics required by Miller. . . . Miller requires

that elements of the definition be a part of the statute.”

Nevertheless, that court held that Miller could be read

into the federal obscenity statute retroactively, saying:

“ _. [I)n 12 200-Ft. Reels, supra, at fn. 7, the Court

states that it is ‘prepared to Gonstrue such [federal

statutory] terms as limiting regulated material to

patently offensive representations or descriptions of

that specific “hard core” sexual conduct given as exam-

ples in Miller. . . .. We believe that this answers the

question and that the definition of Miller is a gloss

properly added to [$1461] . . .” (484 F.2d at 1155).

Such an approach, petitioners respectfully submit, is

plainly erroneous.

When this Court stated that it was prepared to. con-

strue the vague terms “obscene, lewd, lascivious, filthy”

si Gnd cada ew A meee te the gai a te

sg Aree sa 8, 1973, without having his signature

to . The Los Angeles Times (June 9, 1973) reported

that J J ee few

months before his . See, 28 U.S.C. §46(b). :

—23—

in accordance with Miller, the Court made clear that

prior to June 21, 1973, there had been no such ay.

thoritative construction. In Louisiana v. Shreveport

News Agency, Inc., 287 So.2d 464 (Supreme Court of

Louisiana, 1973), the court refused to read Miller into

the Louisiana obscenity statute retroactively. The

Louisiana obscenity statute, like §1461, used the gen-

eral terms “obscene, lewd, lascivious”. etc. In concluding

that the Louisiana statute was unconstitutional because

it did not contain a description of the specific sexual

conduct an obscenity statute must contain if it is to

meet constitutional requirements, Justice Barham, speak-

ing for the court, said:

“. . . [I]t must be obvious even to laymen and’

surely to this Court, that [the Louisiana obscenity

Statute] does not meet the guidelines and stand-

ards set forth by the United States Supreme Court

in Miller v. CalifSrnia.

“We are urged by the State, however, to take

the two examples, which the Miller majority opin-

ion suggests state legislatures might define for

regulation of certain obscene materials, and to

make them the obscenity statute for Louisiana.

“In United States v. 12 200 Ft. Reels of Super

8 mm. Film . . . the Chief Justice . . . stated in

‘specific hardcore’ sexual conduct given as exaii-

29...

ples in Miller v. California. We are bound by the

holdings of the United States Supreme Court. We

are not bound by the passing remarks of the

authors of the opinions from that Court. We are

not of the opinion that we are endowed with the

constitutional authority to re-draft Louisiana’s ob-

scenity statute. . . .” (287 So.2d at 468-469).

Even if the i in 12 Reels of Film is more

than pure obiter dictum, it certainly did not purport

to have any retroactive effect. This Court has consistent-

ly held that the Judiciary is barred by the Due Process

Clause from attempting to cure a vague statute by

retroactive rulings, “either of the trial court or of the

appellate court”, The fundamental principle which re-

quires a criminal offense to have existed when the

conduct in issue occurred applies to bar “retroactive

criminal prohibitions emanating from courts as well as

from legislatures”. Bouie v. Columbia, 378 U.S.347,

353, 354, See also, Douglas v. Buder, 412 U.S.430.

Moreover, as the Court stated in Blount v. Rizzi, 400

US.410, 419: “[I]t is for Congress, not this Court,

to rewrite the statute.”

2. Prior to Jume 21, 1973, §1461 Was Unconstitutionally

Vague, Because the Statute Was Authoritatively Construed

as Requiring Proof That Charged Publications Offend Na-

tional Standards, Which Nationwide Standards This Court

Found Were Unascertainable, Unprovable and Nonexistent.

In Miller, the Court held that in a state obscenity

prosecution, a statewide standard was sufficient to

meet constitutional requirements, and a national stand-

ard need not be applied. But in a federal obscenity

case a national standard must be used, both because

Congress so intended and because the Constitution

3)

probably requires it. In Manual Enterprises, Inc. y,

Day, 370 U.S.478, Justice Harlan said: “We think

that the proper test under this federal statute, reaching

as it does to all parts of the United States whose

population reflects many different ethnic and cultural

backgrounds, is a national standard of decency. We

need not decide whether Congress could constitutional-

ly prescribe a lesser geographical framework for judg-

ing this issue which would not have the intolerable

consequence of denying some sections of the country

access to material, there deemed acceptable, which in

others might be considered offensive to prevailing com-

munity standards of decency.” (370 U.S. at 488). In

a footnote at the same page, Justice Harlan stated:

“The 1958 amendments to 18 U.S.C. §1461, ...

authorizing criminal prosecution at the place of

delivery evince no purpose to make the standard less

than national.” See also, the testimony of Justice Rehn-

wide i ob-

scenity prosecutions. In United States v. Orito, (413 U.S.139,

SP aaas anicaan rae the portion of Miller ing in

413 US. at 23, and in United States v. 12 Reels of Film (413

U.S. at 130, n. 7), the Court incorporated the portion of Miller

ing in 413 U.S. at 25. These page refe

to the Kind of sexual conduct which might be reached under

tute. of

a eae

gress, on H.R.5171, H.R.11009, H.R.11031, H.R.

11032, and related measures, Serial No. 21 (pp. 37-

38, 46-47), where Justice Rehnquist expressed the view

that a federal obscenity statute had to utilize national

standards."

In the case at bar, the jury was repeatedly instructed

that it was required to judge the brochure by national

standards. The jury was instructed that it was required

to find that the brochure was patently offensive “in

that it goes substantially beyond contemporary na-

tional community standards relating to the description

or representation of sexual matters” [J.A. 238]. “You

must measure the material by contemporary or current

national community standards and determine whether

the material . . . exceeds . . . representations of sex

and nudity which are reasonably acceptable in the na-

tional community. . . . Contemporary community stand-

ards means the standards generally held throughout

this country. . . .” [J.A. 241]. The jurors were in-

structed that they were “the sole judges of the con-

temporary community standards of this country” [J.A.

241], and that if they found that the publications

substantially exceed the limits of candor “acceptable

in the national community, then you may find the

material to be patently offensive” [J.A. 242]. “[I]n

determining and applying contemporary national

standards, you must consider what appears generally

in magazines, books, newspapers, television, burlesque,

nightclubs, novels, motion pictures, the stage and other

media of communications in the nation as a whole.

...” [J.A. 243]. Finally, the jurors were told: “You

apply the standards throughout the nation, what you

"This testimony is set forth in some detail as Appendix G,

pp. 52-54, to the Petition for a Writ of Certiorari herein.

—32—.

find the standards to be throughout the nation, I think

is probably a better statement.” [J.A. 250].

Once it is recognized that 18 U.S.C. §1461, as ap

plied to petitioners herein, utilized a nationwide test,

it becomes clear that the statute so applied is uncon-

stitutionally vague. In Miller, the Court observed that

our Nation is too big and too diverse for the Court to

be able to articulate “a single formulation, even as-

suming the prerequisite consensus exists. To structure

an obscenity prosecution around evidence of national

community standards “would be an exercise in futility”

(413 U.S. at 30). The Court found nothing in the

First Amendment that requires a jury to consider “un.

ascertainable ‘national standards’ when attempting to

determine whether certain materials are obscene as a

matter of fact.” (413 U.S. at 31-32) (emphasis added).

In Miller, the Court cited with approval Chief Justice

Warren’s observations in Jacobellis v. Ohio, 378 US.

184, 200, that “there is no provable ‘national stand-

ard’. . . . [I]n all events, this Court has not been able

to enunciate one, and it would be unreasonable to

expect local courts to divine one.”

In Ginzburg v. United States, 383 U.S.463, 480,

Justice Black, dissenting, stated that even if there was

agreement as to the relevant community pursuant to

which the obscenity of material is to be judged, “who is

capable of assessing ‘community standards’ on such a

subject? . . . So here again the guilt or innocence of a

defendant charged with obscenity must depend in the

final analysis upon the personal judgment and atti-

tudes of particular individuals and the place where the

trial is held.” In Winters v. New York, 333 U.S.507,

514, this Court condemned as unconstitutionally vague

lie

aatate statute which, as construed, measured the crim-

jnality of publications by invoking the “experience of

Te sacmsantty eis vo'telt:typan-at cokxsede Milp-4>

bring about the corruption of public morals or other

analogous injury to the public order”.

3. Prior to June 21, 1973, the Statute Was Authoritatively

Construed as Requiring Proof That Charged Publications

Appeal to the Prurient Interest of the Average Person in

the Nation as a Whole, Which Test This Court Labeled

“Unrealistic”.

In Miller, the Court stated that under Memoirs a

national standard of First Amendment protection enu-

merated by a plurality of this Court had to be used

in determining what appeals to the “prurient interest”.

(413 U.S.15, 30). But in Miller, the Court rejected,

for the future, the use of national standards in deter-

mining appeal to prurient interest, saying there are no

“fixed uniform national standards of . . . what appeals

to the ‘prurient interest’. . . _ When. triers of fact are

asked to decide whether ‘the average person, applying

contemporary community standards’ would consider

certain materials ‘prurient’, it would be unrealistic to

require that the answer be based on some abstract

formulation.”

Justice Black, dissenting in Ginzburg v. United

States, 383 U.S.463, 478-479, said of the “prurient

interest” test: “[I]t seems quite apparent to me that

human beings serving . . . as judges or jurors, could

not be expected to give any sort of decision on this

element which would even remotely promise any kind

of uniformity in the enforcement of this law. What

conclusion an individual . . . would reach about whether

the material appeals to ‘prurient interest in sex’

mak oe

would depend . . . upon the [individual’s] . . . per.

sonality, habits, inclinations, attitudes and other jp.

dividual characteristis. . . . In the final analysis, the

submission of such an issue as this to a judge or jury

amounts to practically nothing more than a request

for the judge or juror to assert his own personal be.

liefs about whether the matter should be allowed to be

legally distributed. . . .”

4. Prior to June 21, 1973 §1461 Was Unconstitutionally

Vague Because It Utilized an Unworkable and Ambiguous

Test—the “Utterly Without Redeeming Social Value” Test,

In connection with the “utterly without redeeming

social value” test, Chief Justice Burger spoke of the

“intractable obscenity problem” (Miller, 413 U.S. at

16) and the “variety of views among the members of

the Court unmatched in any other course of constitu-

tional adjudication” (/d. at 22). Quoting Justice Har-

lan, the Court wondered if the “ ‘utterly without re

deeming social value’ test had any meaning at all”

(Id, at 22). The Memoirs test, the Court said, has

been abandoned as “unworkable by its author and no

member of the Court today supports the Memoirs

formulation” (Jd. at 23). The Court also rejected

“the ambiguous concept of ‘social importance’. See,

Memoirs v. Massachusetts, 383 U.S. at 462 . . . (White,

J., dissenting).” (Jd. at 25, n.7). Justice White had

suggested in Memoirs that the concept of “social value”

was essentially meaningless, saying: “[W]hy shouldn't

the fact that some people buy and read such material

prove its ‘social value’?” |

Speaking of the “redeeming social value” test, Jus-

tice Black, dissenting in Ginzburg, 383 U.S. at 480,

said:

osicdwan

“This element seems to me to be as uncertain, if

not even more uncertain, than is the unknown

substance of the Milky Way. If we are to have a

society as contemplated by the Bill of Rights, then

I find little defense for leaving the liberty of

American individuals subject to the judgment of a

judge or jury as to whether material that provokes

thoughts or stimulates desire is ‘utterly without

redeeming social value. . . .’ Whether a particular

treatment of a particular subject is with or with-

out social value in this evolving, dynamic society

of ours is a question upon which no uniform

agreement could possibly be reached among poli-

ticians, statesmen, professors, philosophers, scien-

tists, religious groups or any other type of group.

A case-by-case assessment of social values by in-

dividual judges and jurors is, I think, a danger-

ous technique for government to utilize in deter-

mining whether a man stays in or out of the peni-

tentiary.”

In Stanley v. Georgia, 394 U.S.557, 566, the Court,

citing Winters v. New York, 333 U.S.507, stated that

it is irrelevant “that obscene materials in general, or

the particular films before the Court, are arguably de-

void of any ideological content. The line between the

transmission of ideas and mere entertainment is much

too elusive for this Court to draw, if indeed such a

line can be drawn at all.” In Winters v. New York,

333 U.S. at 510, the Court rejected the suggestion that

the constitutional protection for a free press applies

only to the exposition of ideas. “Everyone is familiar

with instances of propaganda through fiction. What is

one man’s amusement teaches another’s doctrine.

calle

Though we can see nothing of any possible value to

society in these magazines, they are as much entitled

to the protection of free speech as the best of liter.

ature.” The Court, in declaring the New York statute

there involved unconstitutionally vague, quoted from a

New Jersey case as follows:

. That the terms ‘hatred,’ ‘abuse,’ ‘hostility,

are abstract and indefinite admits of no contra.

diction. When do they arise? Is it to be left to a

jury to conclude beyond reasonable doubt when

the emotion of hatred or hostility is aroused in

the mind of the listener as a result of what a

speaker has said? Nothing in our criminal law can

be invoked to justify so wide a discretion. The

Criminal Code must be definite and informative

so that there may be no doubt in the mind of the

citizenry that the interdicted act or conduct is il-

licit.” (333 U.S. at 517).

See also, Burstyn v. Wilson, 343 U.S.495, 501; Cohen

v. California, 403 U.S.15, 24, 26.

5. Prior to June 21, 1973, §1461 Was so Vague, Ambiguow

and Unworkable That This Court Was Required to Adopt

the Redrup Approach of Deciding Each Case on an Ad Hoc

Basis, Wid Without Attempting to Offer Guidance to Those

Subject to the Provisions of the Statute.

In Miller, Chief Justice Burger said that in view of

the unworkability of the Roth-Memoirs test “this Court

was compelled to embark on the practice of summarily

reversing convictions for the dissemination of materials

that at least five members of the Court, applying their

separate tests, found to be protected by the First

Amendment. Redrup v. New York, 386 U.S.767. ...

a Tel

Thirty-one cases have been decided in this manner.

Beyond the necessity of circumstances, however, no

justification has ever been offered in support of the

Redrup ‘policy’. See Walker v. Ohio, 398 U.S.434, 434-

435 . . . (dissenting opinions) (1970). The Redrup

procedure has cast us in the role of an unreviewable

board of censorship for the 50 States, subjectively judg-

ing each piece of material brought before us.” (413

US. at 22, n.3).

Justice Brennan, dissenting in Paris, 413 U.S. at 82,

made the same point, saying: “In the face of this diver-

gence of opinion the Court began the practice in 1967 in

Redrup v. New York, 386 U.S.767, of per curiam re-

versals of convictions for the dissemination of materials

that at least five members of the Court, applying their

separate tests, deemed not to be obscene.” After stating

that the Court had failed to formulate a satisfactory

standard for separating protected from unprotected

speech, Justice Brennan went on to say that out of

necessity the Court “resorted to the Redrup approach,

which resolves cases as between the parties, but offers

only the most obscure guidance to legislation, adjudica-

tion by other courts, and primary conduct. By disposing

of cases through summary reversal or denial of certiorari

we have deliberately and effectively obscured the ra-

tionale underlying the decision. It comes as no sur-

prise that judicial attempts to follow our lead con-

scientiously have often ended in hopeless confusion.”

(413 US. at 83).

Our Constitution, of course, requires fair notice so

that the law-abiding can conform their conduct to the

requirements of the law. But how were the peti-

tioners, law-abiding citizens, to know what publica-

tions dealing with sex would be found obscene by five

en ace

of the Justices “subjectively judging” the publications

“applying their separate tests”? If judges, attempting

to follow this Court’s lead conscientiously, “have often

ended in hopeless confusion”, was not petitioners’ plight

even more hopeless?

In Grayned v. City of Rockford, 408 U.S.104, 108.

109, this Court said: “Vague laws offend several im-

portant values. First, because we assume that man is

free to steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary intelli-

gence a reasonable opportunity to know what is pro-

hibited, so that he may act accordingly. Vague laws

may trap the innocent by not providing fair warning.”

In the case at bar, petitioners, law-abiding persons,

have been trapped by being convicted under a statute

which no man, not even the most learned Justice can

understand.

B. In three cases decided since Miller, the respec-

tive Circuits concluded that a conviction obtained under

the Roth-Memoirs standards could not stand in light

of Miller v. California. In United States v. Friedman,

... F.2d .... (10 Cir. Nos. 72-1143-1144, December 11,

1973), the court had before it convictions and sen-

tences for violations of 18 U.S.C. §1465(2) after

a jury trial. The court vacated the cause, saying: “It

is our view that the several recent decisions of the Su-

preme Court requires a reconsideration of the standards

applicable to cases of this nature.” After citing Miller

and the related cases, the court concluded: “These de-

cisions, in our opinion, require a re-examination of the

facts of this case together with a determination of what

may be the applicable standards.” In United States v.

Palladino, .... F.2d .... (1 Cit. No. 72-1005, Jan. 5,

—

1974), the court also dealt with a federal obscenity

conviction by a jury prior to June 21, 1973. In re-

versing the conviction, the court said the “defendants

are caught in a period of transition, their prosecutions

having taken place before the Miller decisions. They

cannot fairly be subjected to penalties for violation of

rules established after their actions.” In United States

y. Henson, .... F.2d .... (9 Cir., No. 73-2063, Oct. 5,

1973), the court said, after referring to this Court's

decisions of June 21, 1973: “[T]he Supreme Court is-

sued a series of opinions in which its prior definitions

of obscenity were in part repudiated and in which

some elements of the previously existing tests applied

by the District Court . . . were generally characterized

as vague, ambiguous or essentially meaningless.”

In the case at bar, petitioners have been indicted

and tried under a statute which, as interpreted prior

to June 21, 1973, was “essentially meaningless”. The

judgments of conviction thereunder cannot stand.

Il.

In Light of This Court’s June 21, 1973 Rulings the

Indictment Herein Is Fatally Defective Because

It Failed to Inform Petitioners of the Nature and

Cause of the Accusations Against Them in Viola-

tion of the Provisions of the Sixth Amendment.

In United States v. Orito, 413 U.S.139, 145, this

Court vacated the judgment of the District Court and

remanded the case “for reconsideration of the suffi-

ciency of the Indictment in light of Miller v. Califor-

nia . . .¢ United States v. Twelve 200 Ft. Reels . . .

and this opinion.” (Emphasis added).

The necessity of examining the sufficiency of the

Indictment herein flows naturally from this Court's

—40—

recognition that neither the words of the statute stand.

ing alone (“obscene, lewd, lascivious, indecent, filthy

and vile”) nor the gloss put on these amorphous words

by Roth-Memoirs gave sufficient notice of the offense

charged. The counts of the Indictment upon which

petitioners stand convicted are solely in statutory lan.

guage [See, e.g., J.A. 17]. The Indictment does not

contain a description of the specific sexual conduct

Miller held the Due Process Clause requires. Nor does

the Indictment limit the statutory terminology to works

which, “taken as a whole, appeal to the prurient

interest in sex, which portray sexual conduct in a

patently offensive way, and which, taken as a whole,

do not have serious literary, artistic, political or scien-

tific value.” (Miller, 413 U.S. at 24). Petitioners

moved to dismiss the Indictment because, inter alia,

it failed to allege the essential elements of obscenity

and therefore failed to state facts sufficient to consti-

tute an offense against the United States. The trial

court denied the motion and also denied petitioners’

motion in arrest of judgment filed after the convic-

tions herein [J.A. 273]. The court below affirmed, say-

ing that an indictment in statutory language “is not in-

definite or vague and the use of statutory language in

an indictment is sufficient. . . . Hopkins v. United

States, 405 F.2d 770 (9 Cir. 1969).” (481 F.2d at

312). In Hopkins, the court stated that, at most, a

charge in statutory language “could be considered am-

biguous. Had counsel thought it so, he could have asked

for a bill of particulars, Rule 7(f), F.R.Crim.P.” (405

F.2d at 772). In the case at bar, petitioners did ask for

a bill of particulars, but the Government's bill not only

failed to clarify the charge but made it more confusing.

More importantly, however, Russell v. United States,

ales

369 U.S.749, 770, teaches that a bill of particulars

cannot save an invalid indictment: ;

“To allow the prosecutor, or the Court, to make a

subsequent guess as to what was in the minds of

the grand jury at the time they returned the in-

dictment would deprive the defendant of a basic

protection which the guarantee of the interven-

tion of a grand jury was designed to secure. For a

defendant could then be convicted on the basis of

facts not found by, and perhaps not even pre-

sented to, the grand jury which indicated him.”

Russell holds that in an indictment upon a statute,

it is not sufficient to set forth the offense in the words

of the statute, unless those wards of themselves fully,

directly and expressly, without any uncertainty or am-

biguity, set forth all the elements necessary to con

stitute the offense intended to be punished (369 U.S.

at 765-766). See also, United States v. Carll, 105

US.611, 612. Every member of the Court concedes

that the statutory language of §1461, standing by it-

self, is unconstitutionally vague and broad. It follows

that the mere use of the statutory terminology—which

is all we have in the case at bar—fails to set forth

“all the elements necessary to constitute the offense”

intended to be punished by §1461. In Russell, the

Court explored the purpose served by a grand jury in-

dictment in the administration of federal criminal law,

concluding that “[i]n all criminal prosecutions, the ac-

cused shall enjoy the right . . . to be informed of the

nature and cause of the accusation”, and that “the

constitutional provision that a trial may be held in a

serious federal criminal case only if a grand jury had

first intervened reflects centuries of antecedent develop-

ment of common law” (369 U.S. at 761). In the case

<=

at bar, the Indictment failed to inform petitioners of

the charges against them. Moreover, it is clear that

the Grand Jury never returned an indictment which

confined the vagrant language of §1461 within con-

stitutional limits.

Where, as here, guilt or innocence depends so cru.

cially upon the meaning given to the words “obscene,

lewd, lascivious, indecent, filthy or vile”, the indict.

ment must do more than simply repeat the vague lan-

guage of that criminal statute. “It is an elementary

principle of criminal pleading, that where the defini-

tion of an offense, whether it be at common law or by

statute, includes generic terms, it is not sufficient that

the indictment shall charge the offense in the same

generic terms as in the definition, but it must state

the species—it must descend to particulars. . . . An

indictment not framed to apprise the defendant with

reasonable certainty of the nature of the accusation

made against him . . . is defective, although it may

follow the language of the statute.” (369 U.S. at 765).

The Court noted that “these basic principles of funda-

mental fairness retain their full vitality under modern

concepts of pleading, and specifically under Rule 7

(c) of the Federal Rules of Criminal Procedure. . . .”

(369 U.S. at 765-766). Where, as in the case at bar,

the statutory language does not encompass all the ele-

ments of the offense, an indictment which merely re

peats the statutory language requires the accused “to

go to trial with the chief issue undefined. It enables

his conviction to rest on one point and the affirmance

of his conviction to rest on another. It gives the prosecv-

tion free hand on appeal to fill in the gaps of proof by

surmise or conjecture. The Court has had occasion . ..

to condemn such a practice in a quite different factual

<acltiiosin

setting. Cole v. Arkansas, 333 U.S.196, 201, 202.”

(369 U.S. at 766).

This principle has special application to obscenity

prosecutions, where uncertainty as to the meaning of

the term “obscene” has characteristically infected crim-

inal proceedings under §1461. As the Court said in

Russell: “Difficult and doubtful questions are inherent

in the judicial process, particularly under a system of

criminal law which places heavy emphasis upon the

protection of the rights and the liberties of the in-

dividual. . . . [A] proliferation of doubtful issues

which not only burden the judiciary, but, because of

uncertainties inherent in their resolution, work a hard-

ship upon both the prosecution and the defense in

criminal cases, is hardly a desideratum. . . . [T]he re-

peated appearance in prosecutions under a particular

criminal statute of the same critical and difficult ques-

tion, which could be obviated by a simple averment in

the indictment, invites inquiry into the purposes and

functions which a grand jury indictment is intended to

serve.” (369 U.S. at 760).

In Russell, the Court stated that at every stage in

the criminal proceeding the accused “was met with a

different theory, or by no theory at all. . . . Far from

informing [him] of the nature of the accusation against

him, the indictment instead left the prosecution free to

roam at large—to shift its theory of criminality so as

to take advantage of each passing vicissitude of the

trial and appeal” (369 U.S. at 769), and spoke of the

difficulties and uncertainties which the federal trial

and reviewing courts had in dealing with cases arising

under the statute there involved. “Viewed in this con-

text”, the Court said the rule that an indictment must

—

pentll cin

contain more than mere statutory language “is designed

not alone for the protection of the defendant, but for

the benefit of the prosecution as well, by making it

possible for courts called upon to pass on the validity of

convictions under the statute to bring an enlightened

judgment to that task.” (369 U.S. at 769).

Federal trial courts and reviewing courts have had

even greater difficulties and uncertainties in dealing

with cases arising under §1461.

In United States v. Vuitch, 402 U.S.62, the trial

court dismissed an indictment charging the commis

sion of an abortion, on the ground that the statute was

unconstitutionally vague. This Court reversed, conclud-

ing that the statute, properly construed, was not un-

constitutionally vague. The Court stated, however, that

under the statute “the burden is on the prosecution to

plead and prove that an abortion was not ‘necessary

for the preservation of the mother’s life or health’”

(402 U.S. at 71) (Emphasis added).

In Rabe v. Washington, 405 U.S.313, the Court

held that a state obscenity statute, construed as prohibit-

ing the showing of a sexually oriented movie in a

drive-in theatre, which movie might be exhibited to

adults in an indoor theatre with impunity, was im-

permissibly vague for failure to give the accused fair

notice that criminal liability was dependent upon the

place where the film was shown. Chief Justice Burger,

joined by Justice Rehnquist, concurred, saying:

“ . . That this record shows an offensive nuisance

that could properly be prohibited, I have no

doubt, but the statute and charge did not give

the notice constitutionally required.” (405 USS.

at 317) (emphasis added).

a

assis

Circuit and district courts have uniformly in-

validated indictments containing ambiguities less gross

than those found in the case at bar. See, United States

y. Leonard, 455 F.2d 949, 950 (9 Cir. 1972); United

States v. Fiorito, 465 F.2d 431, 432 (7 Cir. 1972);

Nelson v. United States, 406 F.2d 1136 (10 Cir. 1969);

United States v. Beard, 414 F.2d 1014 (3 Cir. 1969);

United States v. Little, 317 F.Supp.1308 (D.C. Del.

1970); United States v. Farinas, 299 F.Supp.852 (D.C.

N.Y. 1969); United States v. Schneiderman, 102 F.

Supp.87 (D.C. Cal. 1951).

The central fact that emerges from the June 21,

1973 decisions is that the statutory language of §1461,

and the gloss put on that language by Roth-Memoirs,

failed to give petitioners the constitutionally required

notice. The Indictment, which merely repeated the de-

fective statutory language was, therefore, fatally infirm.

Il.

The Provisions of Title 18 United States Code §1461,

The court below conceded that petitioners were “cor-

rect” in their contention that the brochure had to be

measured solely by its impact on the average person

and not by its impact on any sexually deviant groups

(481 F.2d at 320-321). Indeed, no other conclusion

was possible in light of the Government's bill of par-

a

wnlBacs

ticulars asserting that the charge in the Indictment

was that the brochure herein appealed to the prurient

interest of the average person [J.A. 45-46]. The court

below concluded, however, that the trial court had

not committed reversible error in instructing the jury

that it could measure the brochure by its appeal to the

prurient interest of the average person or its appeal

to the prurient interest of a clearly defined deviant

group, and in permitting the Government expert to tes-

tify that certain pictures appealed to the prurient in-

terest of various sexually deviant groups..

A. The Trial Court Committed Reversible Error and Rendered

$1461 Unconstitutionally Vague and Broad When It In-

structed the Jury That It Could Measure the Brochure by

Its Appeal to the Prurient Interest of the Average Person or

Its Appeal to the Prurient Interest of Undefined Sexually

Deviant Groups.

The court below concluded that when the instruc

tions “are taken as a whole” the jury was properly in-

structed to measure the brochure solely by its appeal to

the prurient interest of the average person. (481 F.2d at —

321). According to the court below, the trial court was _

attempting to “avoid confusion” and to make perfectly —

clear that the brochure was to be measured solely by —

its_prurient interest to the average person when it in- —

structed the jury as follows: |

“. . . the prurient interest requirement may, also,

be assessed in terms of sexual interests of the in —

tended or probable recipient group . . . (which) —

must be a clearly defined sexually deviant group.

. . . I suppose one clearly defined would be homo —

sexuals. ae

“There are depicted throughout the materials

under consideration, various sexual activities that

iit

may or may not be found to be deviant, that

may have prurient appeal, depending upon the

particular sexual interest of the viewer, whether

normal or deviant. . . .

“Consequently, if you find that some of the ma-

terial appeals to the prurient interest of the aver-

age person, and some of the material appeals to

the prurient interest of a deviant sexual group,

that fact would not preclude your finding that

the dominant theme of the material taken as a

whole is, generally speaking, one of an appeal to

the prurient interest, as has been previously defined

in the broad sense.” (See, 481 F.2d at 321-322).

A brief examination of the record in addition to a

simple reading of the above quoted instruction demon-

strates that the court below was in error. At the

jury conference, the court’s initial proposal for instruc-

ting on prurient interest read in relevant part as fol-

lows:

“Prurient interest is a shameful or morbid inter-

est in sex or nudity and you must measure that

appeal by the average or ordinary adult.”

The court then advised counsel that it was going to

make an addition by changing the period to a comma

and adding the following:

“... or by a clearly defined deviant group, as

explained elsewhere.” [R.T. 4482].

That is the way the court instructed the jury [J.A.

239].

When the court advised counsel that it was going

to instruct on deviant groups, petitioners objected strenu-

ously [R.T. 4483], pointing out that the court would

never be able to define what “the clearly defined sexu-

—48—

ally deviant group is, because there has been no evi.

dence on it and it is going to be pure speculation, and

it would render the statute as applied unconstitutional,

...” [R.T. 4484]. Petitioners expressed open disbelief

when the court stated that it intended to advise the jury

that “the prurient appeal requirement may also be as.

sessed in terms of sexual interest of the intended or

probably recipient group” [R.T. 4485] (emphasis

added). To so instruct the jury, petitioners argued,

would render “the statute unconstitutionally vague in

a sense that is unbelievable, and it is not supported

by the evidence. It is wrong and it is confusing and it

is impossible to work with and it is an instruction that

[petitioners] object to vigorously.” [R.T. 4486].

Petitioners also objected in writing to the proposed

charge [C.T. 918, 920, 921, 933-934], pointing out

that giving the instruction on the appeal to sexually

deviant groups “is a blatant return to the Hicklin test

which was condemned as being unconstitutionally re

strictive in Roth” [C.T. 934]. Finally, after the trial

court instructed the jury, petitioners, in compliance

with Rule 30, objected to the charge which left the

jury free to return a verdict of guilt even if the bro

chure did not appeal to the prurient interest of the

average person [J.A. 262]. See, Stromberg v. Califor-

nia, 283 U.S.359. The instruction was contrary to the

principles enunciated in Roth, Memoirs, Mishkin and

Miller. As construed by the said instruction, §1461 was

rendered unconstitutionally vague and broad.

—49—

B The Trial Court Committed Reversible Error When It

Permitted the Government to Adduce Evidence That Pic-

tures Which Appeared Both in The Ilustrated Report and

the Brochure Appealed to the Prurient Interest of Sexually

Deviant Groups.

Over the continuing and strong objections of peti-

tioners [J.A. 148, 158-163; R.T. 1696, 1701, 1739-

1745], the Government’s alleged expert psychiatrist was

permitted to testify that certain pictures found in both

The Illustrated Report and the brochure appealed to

the prurient interest of sexually deviant groups. The

trial court, in permitting testimony with respect to the

appeal of the material to a sexually deviant group, stated

that it did not know what the “Supreme Court” meant

“py the average man”. [R.T. 1747, 1749].° The court

below assumed that the opinion testimony of the Gov-

ernment’s psychiatrist constituted a variance of proof

under the Government’s answer to the bill of particu-

lars, but stated that this was not prejudicial because

his testimony with regard to sexually deviant groups

was directed to the charged The Illustrated Report and

the sole direct testimony concerning the brochure was

that it had an appeal to “pruriency” (481 F.2d at

321) and because petitioners’ own experts allegedly

covered the same field (481 F.2d at 322).

The court below was in error on both counts. The

specific pictures which the Government's psychiatrist

testified appealed to the prurient interest of sexually de-

viant groups were the same pictures as those appearing

%In Miller, the Court said: “[T)he pri concern with re-

quiring the jury to apply the sta of ‘the average person,

applying contemporary community standards’ is to be certain that,

so far as material is not aimed at a deviant group, it will be

judged by its impact on an average person, rather than a partic-

ularly susceptible . . . person... .” (413 U.S. at 33).

Bee.

—~60—

in the brochure. [R.T. 1697, 1698, 1700-1703, 1708.

1709}. Thus, the jury was told by the Government’s

witness that the pictures in the brochure appealed to _

the prurient interest of sexually deviant groups. |

In stating that the testimony of the Government's

psychiatrist was not prejudicial because the petitioners’

expert allegedly covered the same field, the court

overlooked the fact that petitioners at the trial, before

asking their own expert whether the material appealed

to the prurient interest of any sexually deviant group,

specifically requested the trial court to strike the Gov.

ernment’s testimony concerning the appeal of certain

pictures to sexually deviant groups and to limit the

trial to the impact of the material upon the “average

person”. It was only when the court refused to limit

the testimony that petitioners were compelled to meet

the Government’s testimony by their own witnesses

[J.A. 158-163].

C. The Trial Court Committed Reversible Error in Failing

Instruct the Jury, as Requested by Petitioners, That “Prazi-

ent Interest” Must Be Measured by Nationwide Standards.

In Miller, the Court stated that under Memoirs a

national standard of First Amendment protection had

to be used in determining what appeals to the “prurient

interest” (413 U.S. at 30). In this regard, petitioners

asked the trial court to instruct the jury as follows

[C.T. 736}: |

“If the material does not appeal to your prv-

rient interest, you may take that fact into account

in determining whether it appeals to the prurient

interest of the average person, in the Nation as a

whole. But you must bear in mind that even if

the material may appeal to your prurient interest,

oa Bien

that does not mean it appeals to the prurient

interest of the average person, in the Nation as a

whole. The evidence in this case establishes that

we are a pluralistic society and that sexual ma-

terial does not have a uniform impact upon peo-

ple. Rather, the same material may have a quite

different effect upon persons, depending upon age,

sex, education, religion, marital status and the

like.” [See also, C.T. 915, 918, 919, 920].

The trial court refused to give this instruction and

never advised the jury that it was required to measure

the “prurient appeal” of the material by national

standards. Indeed the jury was never told by what

standards it was to measure the “prurient appeal” of

the brochure. The jury was thus left up in the air as

to whether to measure the prurient appeal of the

brochure by “world-wide, nation-wide, section-wide,

state-wide, country-wide, precinct-wide or township-

wide” standards. See, Ginzburg v. United States, 383

U.S.463, 480 (Black, J., dissenting).

In United States v. Klaw, 350 F.2d 155, 165 (2

Cir. 1960), the court said:

«|. Assuming that ‘prurient appeal’ can be

qdecnaiels defined, there are still some questions:

appeal to whose prurient interest? judged by

whom? on what basis? For example, is it the

‘average person’ who applies ‘contemporary com-

munity standards’ to determine if the ‘dominant

theme’ appeals to ‘prurient interest’ (of someone)?

Or is it someone else applying ‘contemporary

community standards’ to determine that the ‘dom-

inant theme’ appeals to ‘prurient interest’ of .the

‘average person’? Do ‘contemporary community

ea BEN

Standards’ operate to reduce potential prurient

appeal? Or do they operate to establish that some

‘redeeming social importance’ is present? Or, do

they operate to measure the ‘patent offensiveness

of an excess of candor? Again, does the ‘domi.

nant theme, indicate that the prospective prurient

appeal is great or slight? Or does it suggest that

other themes will supply the redeeming social im.

portance? .. .”

The trial court’s failure to instruct on the appeal of

the “prurient interest” of the brochure measured by

national standards, as it was required to do under

Petitioners were convicted of “pandering” a bro-

chure, although the Indictment did not allege pander-

ing in any form. At the commencement of the trial,

petitioners insisted that pandering could not be part of

iB

the Government's case since it was not charged in the

Indictment [R.T. Vol. D, 43-46; R.T. Vol. E, 60].

Petitioners sought, unsuccessfully, to require the Gov-

ernment to elect whether it was charging the material

with being obscene per se, or whether it was charging

ing” [R.T. Vol. E, 63, 67, 70]. At trial,

there was absolutely no evidence that the bro-

chure, found obscene by the jury, was “pandered”.

Nevertheless, the trial court, over petitioners’ objec-

tions, instructed the jury extensively on pandering. The

jury was instructed that it was not limited to the

brochure itself [J.A. 245]; that even if the brochure

did not meet the threefold test, the jury was free to find

it obscene if it found that the brochure was “pro-

duced and sold as stock in trade of the business of

pandering” [J.A. 245]. Pandering, the jury was told,

“is the business of purveying textual or graphic matter

openly advertised to appeal to erotic interest of the

customer. It is a deliberate representation of publi-

cations as erotically arousing, an attempt at titillation,

rather than saving intellectual content” [J.A. 245}.

Pandering evidence, the jury was told, “is pertinent to

all three elements of the basic test of obscenity” [J.A.

245].

Petitioners objected to the court giving a pandering

instruction upon the grounds that it was constitutional-

ly impermissible, misleading, inaccurate, highly preju-

dicial and confusing, and failed to state the applicable

law of the case [C.T. 926]. Petitioners also submitted

that a pandering instruction could not be given since

the Grand Jury which returned the Indictment did not

allege pandering and the giving of such an instruction

would render the statute, as construed and applied,

unconstitutional, in violation of the free speech, due

eal ins

process and Grand Jury provisions of the First and

Fifth Amendments [C.T. 926].

Petitioners pointed out that in United States y.

Pinkus, 333 F.Supp.928 (C.D. Cal. 1971), the court

held that the Government was barred from attempting

to utilize the “pandering” doctrine announced in Ginz.

burg v. United States, 383 U.S.463, if the Indictment

failed to allege pandering. “It is fundamental that a

defendant cannot constitutionally be convicted of an of.

fense not charged in the indictment. . . . I adhere to the

principle that a person is entitled to be informed of

what he is being prosecuted for having done. If proof

of pandering is to make a difference as to obscenity

[the] defendant must first be charged in the indictment

with such pandering.” (333 F.Supp. at 932).

The pandering instruction, petitioners argued, should

not be given in light of the enactment by Congress of

39 U.S.C. §3008, found constitutional in Rowan y,

United States Post Office Dept., 397 U.S.728 since

that statute provided that “pandering advertisements”

could be sent through the mail unti] such time as an

offended addressee requested the Post Office Depart-

ment to issue an order prohibiting further mailings

[C.T. 926}.

Petitioners also argued that a pandering instruction,

if it was to be given at all, would. have to be limited

to Counts 19, 20 and 21 (which alleged that the book —

was obscene), since an advertisement could not pander

itself [C.T. 926}.

At the time of the pre-jury instruction conference,

petitioners objected to the portion of the pandering

charge which stated that pandering is pertinent to all

three elements of the test. Pandering, petitioners ar- -

gued, “applied at most to its impact upon ‘social

value’” [R.T. 4498].

The importance of the pandering instruction in the

case at bar can be seen from the fact that after the

jury had begun its deliberation, it requested the court

to reread its instructions on obscenity and pandering

[R.T. 4989-4990]. Petitioners again objected to the

giving of the “pandering” instruction [R.T. 5012-5013}.

In 1967, Congress enacted 39 U.S.C. §3008 entitled

“Prohibition of Pandering Advertisement in the Mails”.

That Section provides a procedure whereby any house-

holder may insulate himself from advertisements that

offer for sale matter “which the addressee in his sole

discretion believes to be ‘erotically arousing or sexual-

ly provocative’” [39 U.S.C. §3008(a)]. This statute

was found to be constitutional. Rowan v. United States

Post Office Dept., 397 U.S.728. In Rowan, the Court

said that the statute was intended to remove the right

of the Government to involve itself in any determination

of the content and nature of “objectionable materials”

(397 U.S. at 733). The legislative history of the statute

discloses that its provisions were “not intended to pro-

hibit” pandering material from being sent through the

mails, “if the individual to whom it is addressed wishes

to receive it.” Report of the Senate Post Office and

Civil Service Commission [Senate Report, No. 801];

2 U.S.C. Cong. and Adm. News (90th Cong. First

Sess. 1967), page 2295..

In the case at bar, the evidence reveals that each

addressee who testified requested and obtained a pro-

hibitory order pursuant to 39 U.S.C. §3008. They

each testified that thereafter they never received any

further advertisements from any of the petitioners. In

PEG,

short, the evidence shows that 39 U.S.C. §3008 ful

filled its function [J.A. 101-123].

Petitioners submit that Congress, having authorized

the initial mailing of “pandering advertisements”, the

Government cannot now attempt to prove that peti-

tioners violated 18 U.S.C. §1461 because they alleged.

ly mailed such advertisements.’ To so construe -and

apply 18 U.S.C. §1461 would render it unconstity.

tional. Rabe v. Washington, 405 U.S.313. In this con

nection, petitioners asked the court to instruct the jury

that Congress had passed a law which recognized that

it is not a criminal offense to mail unsolicited sexual

advertisements; that the law assumes that there will

be people who desire to receive such advertisements and

people who do not desire to receive them; that the

law secures the right of all persons, including the pe

titioners, to mail such advertisements to persons who

desire to receive them; that with regard to those who

do not desire to receive them, the remedy Congress

chose was to have the Postmaster General order the

mailer to discontinue such mailings to those persons

who have asked for a prohibitory order. Finally, pe-

titioners requested the court to instruct the jury that

it was not free to find petitioners guilty under the In-

dictment herein “merely because you may find that

the [petitioners] . . . have mailed unsolicited sexually _

oriented advertisements to persons who did not desire _

to receive such advertisements.” [J.A. 71-72]. The —

court refused to so instruct the jury.

very opposite. 1

brochure is that The Illustrated Report furthers knowledge

understanding of an important social issue.

siniliines

In United States v. Pellegrino, 467 F.2d 41 (9 Cir.

1972), the court held that an advertisement cannot

pander itself where, as here, it fairly and accurately

describes the book it advertises. The court stated:

“Appellant contends that pandering in the Ginz-

burg sense is never relevant to the question of

whether advertising in itself is obscene, since ad-

vertising does not ‘pander’ itself. Ginzburg, it is

argued, did not make pandering a distinct of-

fense. The Court there was considering the ob-

scenity of the advertised works themselves in the

context of their promotion. Here the question,

appellant asserts, is whether the advertising, stand-

ing alone, is obscene. The only ‘context’ is the

material itself which speaks for itself. There is

no occasion to give consideration to other mate-

rial for the light it can shed on the nature of the

material in question.

“We agree that in the case of advertising the

fact that such material constitutes or includes

pandering does not serve the purpose of enlight-

enment served in Ginzberg. . . .” (467 F.2d at

46).

The text of the brochure herein is set forth in the

opinion of the court below (481 F.2d at 316). The

first page is an exact replica of the book it advertises,

except for the words “THE ALL-AMERICAN COP-

OUT”. Those words have reference to the fact, also

mentioned in the brochure, that the President had dis-

missed the facts set forth in The Commission Report

“out of hand”. There is not a word in the text which

seeks to sell the book by an appeal to the “erotic in-

terest” of the customers. The text of the brochure is

_

— sn

not on the “sexually provocative aspects” of The Illus.

trated Report.

Notwithstanding the fact that the brochure neither

pandered itself nor the book it advertised, the court

below erroneously held that it was proper to instruct

the jury that the brochure could pander itself (481 F.2d

at 323). In this the court was in error. See, United

States v. Books, Inc., 388 U.S.449, rvsg. 358 F.2d 935

431 F.2d 272 (9th Cir. 1970). See also, United States

v. Palladino, 475 F.2d 65, 71 (1 Cir. 1973); Spinar y,

United States, 440 F.2d 1241 (8 Cir. 1971); Luros y,

United States, 389 F.2d 200 (8 Cir. 1968).

V.

The Brochure at Issue Is Protected by the Free Speech

and Press Provisions of the First Amendment to

the United States Constitution. It Is Neither Ob-

scene in Fact nor in Law.

The government witnesses and petitioners’ witnesses

agreed that the brochure herein is intimately linked to

the book it advertises. The Government’s alleged ex-

pert on social value referred to the brochure as “a kind

of a miniature of the book itself’ [R.T. 2372]. Pe

titioners’ witnesses on social value each expressed the

view that the brochure has social value in part be

cause it advertises an important book. As the court

below observed, the opinions of petitioners’ experts

were “that the Report with its illustrations had great

social value, and four of the experts testified that in

their opinion the Brochure had redeeming social value

and was not obscene” (481 F.2d at 311).

As heretofore noted, the jury did not agree with the

Government’s contention that The Illustrated Report

was obscene. Indeed it could reach no decision with

= See

regard to The Illustrated Report. Since all communi-

cations are presumed to be protected by the First

Amendment until found to be outside such protection,

The Illustrated Report is presumptively protected ex-

pression. In response to petitioners’ argument that the

brochure is protected by the First Amendment because

it is a fair and accurate advertisement for a constitu-

tionally protected book, the court below replied: “The

premise is false. . . . If there be a presumption of

the protection of the Report then a query of the bona

fides of the Brochure as a protected advertisement is

in order.” (481 F.2d at 315). The court recognized

that a different panel of the Ninth Circuit, in United

States v. Pellegrino, 467 F.2d 41 (9 Cir. 1972), held

that a brochure containing pictures which the. court

below believed were “hard core pornography” (481

F.2d at 320) was nevertheless protected, because

the “obscene” pictures were “presented as_illustrat-

ing various aspects of the book’s claimed contribu-

tions to general knowledge. . . .” The court below

sought to distinguish Pellegrino, saying that “the ad-

vertised Report as well as the advertising Brochure are

under charge of obscenity. While we are not dealing

with the charges against the Report on this appeal,

it is considered necessary to place it in some context

with the Brochure.” (481 F.2d at 315). The court

then stated that unlike the Pellegrino brochure the

portrayals in the brochure herein “are not accompanied

by any text and do not purport to be related to any

material in the Report.” (481 F.2d at 315-316). The

court below was of the opinion that “whatever bona

fide advertising attributes the Pellegrino brochure may

have had the Brochure here has none. . . . It was for

the jury to determine whether the Brochure had any

oe ae

—60—

redeeming social value to justify its own position.”

(481 F.2d at 317). The court concluded that peti-

tioners’ claim “that the Brochure is inseparable from

the Report is untenable and as such loses any constitu.

tional protection as a legitimate advertisement of an

asserted protected book.” (481 F.2d at 317).

Initially, it should be observed that every picture in

the brochure was also in The Illustrated Report. As

heretofore stated, the Government stipulated that every

picture in The Illustrated Report was related to the text

of the official Report; and that pictures similar to those

appearing in The Illustrated Report were used in vari-

ous research activities that the Commission undertook

[J.A. 163-166]. That the official Report of the Com-

mission is itself of great political and social value can-

not be disputed. The Illustrated Report has similar

political and social importance. See, e.g., Judge Aldrich’s

reference to The Illustrated Report in United States vy.

Palladino, 475 F.2d 65, 75-76, n.1 (1 Cir. 1973). The

record herein establishes that The Illustrated Report

with its pictures is more valuable than the official

Commission Report. One of petitioners’ witnesses, Com-

missioner Otto N. Larsen, Chairman of the Effects

Panel of the Commission, testified that the illustrations

enhanced the value of the Report; that the illustrations

made clear what the Report was discussing and made

it easier for persons to make judgments as to the recom-

mendations made by the Commission [R.T. 4229-

4286]. Dr. Cody Wilson, Executive Director and Di-

rector of Research of the Commission, also testified

that The Illustrated Report was more valuable than

the official Report, precisely because of the pictures

contained in The Illustrated Report [R.T. 3354].

vieliiniss

In United States v. Palladino, 475 F.2d 65 (1 Cir.

1973), vacated 413 U.S.916, the court held that an

advertisement for a work entitled “The Photographic

Deck of Sexual Love” was protected as a matter of

law upon the jury finding that the advertised work was

not obscene. “[S]ince the jury here necessarily held

the advertisement for ‘The Photographic Deck of Sex-

ual Love’ not obscene” by reason of the fact that it

held the advertised work not obscene, “the government

may not again introduce [the advertisement] into evi-

dence to establish the crime of mailing obscene mat-

ters.” (475 F.2d at 74). Following remand, the First

Circuit reversed the judgment of conviction, .... F.2d ....

(1 Cir. 1974, No. 72-1005). Concerning the advertise-

ment for the “Photographic Deck of Sexual Love”,

the court said: “[W]e retain the ruling that because

the jury held ‘Photographic Deck of Sexual Love’ to

be non-obscene, consistency requires that the advertise-

ment (which contained a partial presentation of the

same photographs) be non-obscene as well”.

A. The Record Establishes That the Brochure Has Social Value

and Serious Political Value.

The brochure fairly and accurately advertises The

Illustrated Report. It advises the reader, accurately,

that The Illustrated Report contains the complete text

of the official Report. It states, correctly, that the de-

pictions contained in the brochure, taken from The

Illustrated Report, could have been part of the studies

made by the Commission. The brochure emphasizes

that the President is to be criticized for dismissing The

Commission Report “out of hand”; that suppression of

the Report is demeaning to every adult; that adults

Should be allowed to make their own decisions and

=

me ES

that many of them probably will do so after reading

The Illustrated Report; that the book is a “MUST”

for the research shelves of every library seriously con-

cerned with intellectual freedom and adult selection,

In short, the brochure communicates information —

about the book it is advertising; expresses opinions

about it; expresses political views concerning the sub-

ject of obscenity; and urges the public to read The

Illustrated Report.

Dr. Wilson testified that the brochure “is an adver-

tisement for a book that contains a great deal of in-

formation, of facts, relative to a very important issue in

our society, and that it has importance in trying to

communicate the existence of this book and asked

them to buy it and to read it.” [J.A. 170]. On cross-

examination, he elaborated on this theme [J.A. 177-

182], concluding that since the brochure advertised

a book that has social value and since The Illustrated

Report does present the kind of ideas the brochure

claims that it does, the brochure is valuable.

Commissioner Larsen testified that the brochure

fairly advertised The Illustrated Report and had social

importance for essentially the same reasons that the

book had social importance [J.A. 19]. After testi-

fying to the importance of advertising, particularly in

connection with the sale of books, he testified that

the brochure in question tells the person what the book

is about; it represents the material fairly; it makes an

argument for purchasing the book; and tells how it

may be obtained [J.A. 191]. The brochure, he testi-

fied, makes a strong claim about why the book should

be purchased [J.A. 192]. It puts a complex social issue

into a political framework and, in so doing, reflects ac-

curately that the official Report was received negatively —

—

by political leaders. The brochure politicalized the

issue by stating that “even the President dismissed the

facts [found by the Commission] out of hand”, and

that this is “an inexcuable insult directed at every

adult in this country” [J.A. 192-193]. By focusing

upon the political issue, Commissioner Larsen stated

that the advertisement might attract the attention of

people desirous of finding out what the President was

objecting to [J.A. 193]. In addition to being a political

issue, Commissioner Larsen believed that the Report

also raised social, family, community and moral issues

[J.A. 193}.

Commissioner Larsen described the brochure as

quite similar to brochures large publishing companies

use in advertising textbooks [J.A. 199]. These bro-

chures, like the brochure at issue, “often include a

montage of photographs that are used in the text, and

then a . . . message” which states in effect, “this is

what you need and here is where you get it” [J.A.

199}. The brochures used by the major publishers

are usually two pages, like the brochure at bar, and “is

in color and [attempts] to attract the attention of the

wer” [J.A. 199]. In short, Commissioner Larsen

testified that the format of the brochure in question

is essentially the same as the format customarily used

by major publishers in selling textbooks [J.A. 199-

200]. Since The Illustrated Report deals with explicit

sexual material, it is quite proper, he testified, for the

brochure to use explicit sexual material to attract at-

tention [J.A. 200]. In addition to the illustrations,

the brochure emphasized “the monumental work of re-

search and investigation” of the Report, and “the right

of [an individual] to have access to [The Illustrated Re-

port} and make up [his] own mind” [J.A. 200].

a See

Commissioner Larsen testified that the emphasis on

the right of free choice was the critical issue at stake

[J.A. 200]. Some people, he thought, would be more

upset about the statement concerning the President

than they would about the pictures [J.A. 201]. Com.

missioner Larsen also testified that the pictorial por.

tion of the brochure has social value because there is

great curiosity about such representations and the pub-

lic has demonstrated its interest in such material by

purchasing similar material and apparently deriving |

value from such material [J.A. 208]. Such pictures

evoke positive reactions from people; they enhance

communication among married persons; they are in-

formative, without causing damage.

Dr. Jack Haberstroh, an advertising expert and As-

sistant Professor of Advertising in the Journalism De-

partment of San Diego State College, described the

brochue advertising The Illustrated Report as a fac-

tual, straight-forward, serious and truthful advertise

ment [J.A. 187]. It was his opinion that the brochure

had redeeming social value because it honestly pro-

motes the sale of a book that has great social signifi-

cance [J.A. 187]. By acknowledging that there was

dissent concerning The Commission Report, the bro-

chure was within a frame of reference of social value

[R.T. 4002]. Dr. Haberstroh did not find the photo

graphic illustrations in the brochure misleading or de-

tracting from its social value [R.T. 4002-4003]. On the

contrary, he said: “Taken as a whole, the photo

graphs and the mail piece itself . . . is probably a more

truthful kind of mailing piece of advertising than many

others which have nothing to do with sexually explicit

material” [R.T. 4003].

=

oe

On cross-examination, Dr. Haberstroh stated that

the brochure in question is more honest than many

advertisements for products such as toothpaste, per-

fume, shaving cream etc., which falsely promise sexual

success if only the product is bought and used {R.T.

3999-4003, 4035-4036]. He pointed out that the bro-

chure in question, unlike many other advertisements,

did not contain any “double entendre statements” or

any sexually stimulating statements [R.T. 4036].

Commenting about the statement in the brochure,

“Thanks a Lot, Mr. President”, Dr. Haberstroh testi-

fied that it referred to the fact that President Nixon

disavowed the work of the Commission and that the

statement is a very serious comment and commentary

about the Administration in Office [J.A. 187]. Dr.

Haberstroh testified that the brochure had to be con-

sidered in terms of the particular book it was selling

and that the book had a message that all persons ought

to be listening to. “If we object to the present obsceni-

ty and pornography laws, or if we are in favor of the

present obscenity and pornography laws . . . we should

be listening to the message contained in this book”,

which the brochure advertises [J.A. 189-190].

Dwight W. Swain, a Professor of Journalism at the

University of Oklahoma, and a man with a vast prac-

tical experience in the mass media [R.T. 3753-3783],

also testified that the brochure had redeeming social

value [J.A. 185].

The Government called a single witness in its at-

tempt to establish that the brochure was without re-

deeming social value. Mr. Frank Getlein, a newspaper

man without other credentials, testified that the bro-

chure was without social value for the same reasons he

‘ills

believed The Illustrated Report was without social

value [J.A. 149-150]. As heretofore noted, he referred

to the brochure as “a kind of miniature of the book it.

self” [R.T. 2372]. Referring to the textual portion of

the brochure, he said: “[It] is simply a selling piece

with kind of a pass at liberty of expression and learn

ing etc., being made very faintly even in that [J.A.

151}.

B. The Record Establishes That the Brochure Is Not Patently

Offense to National Standards or to Standards of the

Southern District of California.

Both Commissioner Larsen and Dr. Wilson testified

at length that the brochure was not patently offensive

and did not go substantially beyond customary limits

of candor in the description of sexual matters. They

each relied on scientific surveys and studies that in-

dicate that similar material is generally available and

acceptable throughout the Nation, and that people have

voluntarily exposed themselves to such materials to

satisfy a normal curiosity and do not find such mate

rial patently offensive.

Dr. Wilson testified that pictures as explicit as those

at bar are available and acceptable throughout the

Nation, and that people voluntarily buy and view

substantial numbers of publications containing similar

illustrative material [J.A. 166-167]. Dr. Wilson had

great familiarity with the degree of acceptance of sex-

ually explicit material throughout the Nation [R.T

3575] and in San Diego, within the Southern District

of California [R.T. 3575-3581].

Commissioner Larsen testified that the tolerance

level for sexually explicit material has greatly broad-

ened over recent times and that if there has been a sex-

a

sae

ual revolution it has been a revolution in the com-

munications aspect of such materials [R.T. 4235]. The

scientific studies and his personal experience convinced

him that substantial numbers of persons were not of-

fended by pictorial material such as that at bar [R.T.

4325]. The pictorial material, he testified, is not pat-

ently offensive because the range of reaction to such

material is highly variable [R.T. 4235]. It is a social

fact, he testified, that people are not automatically of-

fended by such materials [R.T. 4236]. From responses

of students and large audiences, he found that people

were willing to look at such pictures [R.T. 4236].

A national survey, conducted on behalf of the Com-

mission, revealed that a majority of the American

people (almost 60% ) believed that adults should be

allowed to read or see any explicit materials they de-

sired. The survey, and the additional studies, conduct-

ed by the Commission indicate that the American people

have an enormous interest and tolerance for sexually

explicit material; that they voluntarily expose them-

selves to such material and find benefit in doing so;

that the marketplace contained and the American people

accepted sexually explicit material similar to the pic-

tures at bar. In light of the changing standards of

acceptability of sexual material and the tolerance and

interest shown by the American people for such ma-

terial, Commissioner Larsen was of the opinion that

the pictures at bar were not patently offensive and

did not go substantially beyond customary limits of

candor in the Nation as a whole [R.T. 4228-4229,

4247-4250, 4262-4265, 4314-4322].

Commissioner Larsen testified that the brochure did

not patently offend national standards for the addi-

tional reason that “the tolerance level for what goes

nlc

on in advertising is probably greater than in any other

sector of American life given the vast experience we

have had with [advertising]” [J.A. 194].

The Government again relied on Mr. Frank Getlein

as its sole witness on the question of customary limits

of candor. His qualifications on this aspect of the case

consisted of having visited a number of adult book.

stores in various parts of the country and talking

casually to various persons on the subject as he tray-

eled throughout the country. In the twelve months prior

to his testifying, he had visited only three adult book-

stores and, while there, was unable to see the con-

tents of most of the material because they were wrapped

in cellophane and he never purchased any publications

from those stores [R.T. 2297-2298, 2306, 2493]. He

testified that in his opinion the brochure went sub

stantially beyond customary limits of candor in depict-

ing sexual matters [J.A. 194-195].

On cross-examination, Mr. Getlein conceded that a

photograph of a female touching the genitalia of a

man is not beyond customary limits of candor [J.A.

152]. He also testified that a photograph of mouth

genital contact with the penis of a man was within con-

temporry standards [J.A. 153], although such a pic

ture “would not appear in Life Magazine” [J.A. 154].

Similarly, a photograph of cunnilingus, he testified, is

within community standards [J.A. 154]. Such photo

graphs, and the acts themselves, he testified, are “ob-

viously accepted by the community as within its stand-

ards” [J.A. 153].

ee

C. The Record Establishes That the Brochure Does Not Appeal

to the Prurient Interest of the Average Person.

Commissioner Larsen and Dr. Wilson testified that

the brochure did not appeal to the prurient interest

of the average person. Both witnesses relied heavily

upon the empirical data from the extensive surveys and

scientific studies engaged in by the Commission [J.A.

167-169, 193-194, 201; R.T. 3521, 3522; 4232, 4287-

4291]. This scientific empirical data demonstrates that

pictures similar to those in the brochure have a variety

of appeals and a variety of responses, depending in

part on the message and, in part, on “the eye of the

behelder”"—what he has experienced and his predis-

positions [R.T. 4232; 3521]. Persons will react dif-

ferently to sexually explicit material, depending on such

factors as age, education, size of community, attend

ance at a place of worship and sexual experiences

[R.T. 3521; 4232-4233, 4287-4295]. Some people

looking at sexually explicit material will call it “disgust-

ing”, while others looking at the identical material will

call it educational, entertaining or informing [R.T.

4288]. Empirical data indicates that most people in

America voluntarily expose themselves to pictures sim-

ilar to those at bar without harm and without having

their prurient interest aroused [R.T. 3521, 3536]. The

consensus of informed professional opinion is that

such pictures appeal to the natural curiosity of the

average person and not to any prurient interest [R.T.

3522, 3546, 3684-3695].

neal

Both Commissioner Larsen and Dr. Wilson also

viewed the brochure as an appeal to reason rather than

an appeal to prurient interest. They both testified that

the extensive scientific research carried out by the Ef.

fects Panel of the Commission persuaded them that the

pictures in the brochure do not evoke the lustful,

shameful, morbid reactions which are the ingredients of

prurient interest [R.T. 3521-3522, 3536-3538, 3546,

3672, 3683, 3685-3695; 4233; 4243-4246; 4247; 4288.

4292; 4321-4323].

The Government relied solely on Dr. Melvin Anchell,

a_ self-proclaimed psychiatrist [R.T. 1586] on the

prurient interest issue. Dr. Anchell was a general prac-

titioner of medicine in Texas, when he decided, on his

own, to practice psychiatry. He is not a Board certified

Psychiatrist, nor has he ever had published any articles

in professional medical journals [R.T. 1606-1635,

1638]. Dr. Anchell’s testimony concerning the brochure

was limited to a single word. When asked for the dom-

inant theme of the brochure, he answered “pruriency”

[J.A. 147].

D. Documentary Evidence, Introduced by the Government, Es-

tablishes That the Brochure Is Not Obscene.

Documentary evidence introduced by the Govern-

ment itself establishes that the brochure is not obscene.

The Government introduced The Report of the Com-

mission on Obscenity and Pornography as Exhibit 22.

This evidence, introduced by the Government, contains

relevant empirical data bearing on each of the three

elements of obscenity, and supports the testimony of

petitioners’ experts that the brochure does not appeal

to prurient interest, is not patently offensive, and is

not utterly without redeeming social value [Commis-

sion Report, 352-357].

one Re

E. The Government Failed to Discharge Its Burden of Proving

Under Our Criminal Standards That the Brochure Was

“Utterly Without Redeeming Social Value”, Patently Of-

fensive to “National Standards” and Appealed to Prurient

Interest, Applying “National Standards”.

In Miller v. California, 413 U.S. at 21-22, .the

Court recognized that prior to June 21, 1973, the

Memoirs three-pronged test was the law of the land.

Until Miller was decided, “Memoirs required that to

prove obscenity it must be affirmatively established

that the material [was] ‘utterly without redeeming so-

cial value’. . . . Memoirs . . . called on the prosecution

to prove a negative, i.e., that the material was ‘utterly

without redeeming social value’—a burden virtually im-

possible to discharge under our criminal standards of

proof.” In the case at bar, the Government plainly

failed to meet this “virtually impossible to discharge”

burden of proving beyond a reasonable doubt that the

brochure is “utterly without redeeming social value”.

The Government similarly failed to meet its heavy

burden of proving that the brochure was patently of-

fensive to national standards and appealed to the pru-

rient interest of the average person in the Nation as a

whole. As heretofore observed, this Court stated in

Miller that when triers of fact are asked to decide

whether the average person, applying contemporary

community standards, “would consider certain mate-

rials ‘prurient’, it would be unrealistic to require that

the answer be based on some abstract formulation. . . .

To . . . structure obscenity proceedings around evi-

dence of a national ‘community standard’ would be an

exercise in futility. . . . [A] ‘national’ standard off First

Amendment protection enumerated by a plurallity of

this Court [in Memoirs] was correctly regarded at the

eullias

time of trial as limiting . . . prosecution under the con-

trolling case law.” (413 U.S. at 30-31) (Emphasis in

original). The Government’s skimpy proof totally failed

to meet the high standards required in every criminal

case (see, In re Winship, 397 U.S.358, 361-364), and

particularly required in criminal cases touching on First

Amendment rights. See, Gojack v. United States, 384

U.S.702; Speiser v. Randall, 357 U.S.513; New York

Times Co. v. Sullivan, 376 U.S.254.

VI.

Petitioners Were Denied a Fair Trial, and Due Process

of Law, When the Trial Court, in Open Defiance

of Rule 30, Federal Rules of Criminal Procedure,

Denied Petitioners the Opportunity to Make Ob-

jections to the Court’s Jury Charge Outside the

Presence of the Jury.

A. Rule 30 of the Rules of Criminal Procedure

reads, in relevant part, as follows:

“. . . No party may assign as error any portion

of the charge or omission therefrom unless he ob-

jects thereto before the jury retires to consider

its verdict, stating distinctly the matter to which

he objects and the grounds of his objection. Op-

portunity shall be given to make the objection out

of the hearing of the jury and, on request of

any party, out of the presence of the jury.” (Em-

phasis added).

In 1966, Rule 30 was amended by adding the ital-

icized words. Notwithstanding the clarity of the Rule,

the trial court denied petitioners’ request that they be

given an opportunity to make their objections out of

the presence of the jury. After the court instructed the

par ER

jury, the following colloquy occurred between one of

petitioners’ counsel and the court [J.A. 257]:

“MR. FLEISHMAN: .. .

“I think the matter is at this stage very sensi-

tive with the Jury here. I would suggest it wouldn't

take long, perhaps not more than four or five

minutes, but I would urge the Court to ask the

Jury to go into the jury room while we present

[our objections].

“I gather that sometimes words drift over to

the jury at this stage of the proceedings.

“THE COURT: You have made all the ob-

jections suitable that I can think of. I want to

send this Jury out. If you want to make a state-

ment, make a statement.

“MR. FLEISHMAN: I would ask the Court

if it is convenient, that they be excused for a few

moments.

“THE COURT: No.”

Thereafter, counsel was compelled to make objections

to the judge’s charge in the presence of the jury, and

possibly in the hearing of the jury.

The objections covered a wide area, including the

court’s erroneous reference to a “magazine” instead

of an advertisement; the court's instruction concerning

expert witnesses; the court’s instruction on the number

of witnesses called by each side; the court’s improper

use of the term “indecent character”; the court’s instruc-

tion on “knowledge”; the court’s failure to make any

reference to knowledge concerning Counts 2 through

5 and 7 through 13,” the court’s instruction that the

See [J.A. 231].

eile

belief on the part of the petitioners that the material

is not obscene is absolutely irrelevant; the court's in-

struction that material appeals to prurient interest if it

has a tendency to incite lustful thoughts,” the court's

instruction on “prurience”; the court’s instruction con-

cerning homosexuals as a clearly defined sexually de.

viant group,” the court’s instruction that the prurient

appeal of the material could be measured by its im-

pact upon undefined sexually deviant groups; the court’s

instruction that the jury could consider “pandering”

with regard to each and all of the elements of ob

scenity; the court’s failure to give petitioners’ tendered

instructions on the essential elements of the offense;

the court’s failure to give an instruction based upon

United States v. Baranov, 418 F.2d 1051 (9th Cir.

1969). Petitioners argued that the court’s charge denied

petitioners due process of law and denied them rights to

freedoms of speech and press secured by the First

Amendment. Petitioners were.also forced to object in

the presence of the jury to the court giving the Indict-

ment to the jury to take into the jury room [J.A.

258-265].

Following all of this, the only further instruction

the court gave to the jury was as follows [J.A. 265].

“If during my instructions I referred to the ad-

vertisement as a ‘magazine’, rather than an adver-

tisement, please disregard that reference.”

ae

11Petitioners the court to instruct the jury that it

was required to beyond a reasonable doubt, that the ma-

terial aroused lustful thoughts [J.A. 261].

ae ae

_B. The court below recognized, of course, that the

trial court violated the plain command of Rule 30,

saying: “While hindsight is very good at telling us that

compliance with the rule would have been the right

thing to do, it does not answer the question in this

case.” (481 F.2d at 324). The court below treated the

violation of Rule 30 as an “inconsequential” procedur-

al error that did not prejudice petitioners, saying that

the trial court “held an extensive and exhaustive con-

ference by way of reviewing the requests and settling

the instructions to be given”, and that accordingly it

“should have been clear” to petitioners “that the after

instructing conference at the bench was to be a per-

functory record saving session” (481 F.2d at 324).

Finally the court below said in this regard:

“Whatever reaction the jury might have had

from seeing or hearing any part of the bench con-

ference was the result of counsel’s own doings

and unnecessary for the preservation of [peti-

tioners’] record of objections. We conclude that

there was no prejudice to any of the [petitioners]

as a result of the procedural error on the part of

the district court to literally comply with Rule

30.” (481 F.2d at 325) (emphasis added).

C. Neither the record nor the cases cited by the

court below support that court’s conclusion.

The record demonstrates that the harmful reaction

the jury might have had from seeing or hearing the

bench conference was not the result of counsel’s own

doing, and the bench conference was necessary for the

preservation of petitioners’ record of objections. Initial-

ly, it should be observed that the conference settling

instructions was not as “extensive and exhaustive” as

tek

the court below seemed to think it was, nor were all

the instructions there settled. The evening before coun

sel were to argue the trial court stated:

“. . . The instructions that I propose to give rele-

tive to the substantive counts . . . are contained in

that packet that you have. It is from that packet

that I will choose one or more of the sub

jects to instruct upon . . . and it is from that

packet that we will go over the instructions. Now

I have not had an opportunity—although I have

been working on the instructions you still caught

me short—I have not had an opportunity to go

into which one of those instructions I propose to

give. . . . [W]e will get together . . . tomorrow

morning early, before you . . . argue, and I will let

you know which ones I propose to give and then

we will take it from there.” [R.T. 4442-4443)"

Many of the instructions remained unsettled. Thus,

with regard to one instruction being discussed, the

court said: “That’s yet to be determined” [R.T. 4457];

with regard to another, the court stated: “I will con-

sider it” [R.T. 4471]; with regard to yet another, the

court stated: “I might have to redo this” [R.T. 4479).

When the Government submitted its proposed modifi-

cation to the court’s instruction on “prurience”, the

court advised the Government that it was free to submit

an addendum if it felt it necessary [R.T. 4487]. When

counsel for petitioners asked for an instruction limiting

the “pandering” instruction the court indicated it

would give, the court stated: “I will have an instruc-

tion . . . that will minimize that question. . . .” [R.T.

‘Petitioners filed the bulk of their proposed instructions on

October 13, 1971, approximately seven weeks before the trial

court conducted the pre-instruction jury conference [J.A. 5].

—

ciel Diese

4492]. With regard to another Government request,

the court said: “I will work it in there some place”

[R.T. 4495]. When petitioners requested an instruction

in accordance with the ruling in United States v. Bara-

nov, 418 F.2d 1051 (9 Cir. 1969), Government

counsel stated that he was not sure what the court

meant to do, whereupon the court stated: “I will take

a look at that. We will see. That may go out entirely.”

{R.T. 4502]. When petitioners’ counsel submitted

another instruction, the court stated: “All right, I will

take a look at it.” [R.T. 4504].

There was considerable confusion at the settlement

conference, because many of the court’s instructions

were not numbered or otherwise easily identifiable

[R.T. 4466, 4473, 4480, 4485, 4497].

As noted above, the trial court did not have its

proposed jury instructions in perfect order at the time

= of the settlement conference. Following a colloguy on

one instruction, the court said: “You write them and

you think they are great, and when you read them

they sound terrible. I guess that is called editing” [R.T.

4494}.

Since the settlement conference was held on the

morning when argument was to begin, the court pressed

counsel for petitioners to accelerate his objections, say-

ing: “I really feel that under the circumstances, having

reviewed [the] instructions and reviewed the adden-

dums to these instructions and additional instructions,

that is completely unnecessary for the purposes of your

record to go through this matter and I think we ought

to get on with argument at this point.” [R.T. 4515.

See also, R.T. 4481].

The court below discussed three cases in reaching

its conclusion that the trial court’s violation of Rule 30

ee

was not grounds for reversal. Hall v. United States,

378 F.2d 349 (10 Cir. 1967); United States v. Fernan-

dez, 456 F.2d 638 (2 Cir. 1972); and United States y,

Schartner, 426 F.2d 470 (3 Cir. 1970). Additionally,

the court below stated, without citation, that the

Fernandez rule “appears to abide also in the Sth Cir.

cuit.” (481 F.2d at 324). In Hall, the appellant had

been convicted of unlawful entry into and larcency

from a federally insured bank. After the charge to the

jury had been given, the following colloguy occurred

(378 F.2d at 349-350):

“The Court: I will ask of counsel for the plain-

tiff and defendant if there is any further record

either side cares to make with reference to the

trial of this case before the bailiff is sworn to

take charge of the jury.

Mr. Raley: Nothing for the Government, your

Honor. ;

Mr. Burton: I do have some things to—

The Court: You may come to the desk here.

Mr. Burton: May I make my record out of the

presence of the jury, your Honor?

The Court: You can make it right now.

Mr. Burton: May the record show we are in

the presence of the jury.

The Court: But out of the hearing of the jury.”

Thereafter, defense counsel briefly noted his formal

objections to the charge and his reasons therefor, and

handed to the court an instruction with a comment

that he “thought it was to be given”. The court then

gave the additional instruction to the jury. The Gov-

ernment argued that the lack of literal compliance with

Rule 30 was not prejudicial because at a pre-instruc-

tion conference “defense counsel was granted full op

weil

portunity to argue and record his objections to pro-

posed instructions outside the hearing and presence of

the jury”, and in any event “the jury was not adverse-

ly impressed by the later bench conference for, ‘from

all outward appearances,’ defense counsel won his point

as evidenced by the giving of fhe ‘further instruction’

gequested by the defense.” (378 F.2d at 350). The

Tenth Circuit found “no merit” in the Government’s

argument, saying (378 F.2d at 350):

“The amendment to Rule 30 was intended to

allow counsel full opportunity to argue and re-

cord objections to the court’s instructions and,

upon request, to do so outside the presence of

the jury in order to avoid the psychological pres-

sure of low-tone bench conferences leading to

truncated presentations and understandings. Nei-

ther the merits of the objections nor the success of

the advocates are pertinent to the proper applica-

tion of the rule. . . .”

:

In United States v. Fernandez, 456 F.2d 638 (2

Cir. 1972), appellant was convicted of bank robbery.

The Second Circuit reversed the conviction in part be-

cause Rule 30 was not followed. The court noted that

counsel for appellant was required to make her ob-

_ jections in open court, “with the consequent danger

that the jury might infer that counsel’s points were

without merit. Yet F.R.Cr.P. 30, as amended in 1966,

provides, as F.R.Civ.P. 51 has always done, that, on

request of any party, opportunity shall be given to

object to instructions out of the presence of the jury.

The rule is so plain, and its purpose so obvious, that

we can perceive no justification for ignoring it. Here

we need not go so far as to hold, as was done in Hall

v. United States, 378 F.2d 349 (10 Cir. 1967), that

refusal to grant a request that objections to the charge

be heard out of the presence of the jury calls for ay.

tomatic reversal. However, enforcement of F.R.Cr.P,

30 demands a principle at least as severe as that which

we have applied in civil cases. . . .” (456 F.2d at

644). In footnote 6 (Id., at 644), the court said:

“(W]e do not put aside the possibility that the cor.

rect test in criminal cases may be that reversal will

follow ‘unless it be demonstrable on an examination

of the whole record that the denial of the right did not

prejudice’ a defendant’s case. United States v. Schart-

‘ner, 426 F.2d 470, 479-480 (3 Cir. 1970).”

In United States v. Schartner, appellant was convict-

ed, inter alia, of knowingly jeopardizing the lives of

two bank employees with a gun. The conviction was

reversed in part because Rule 30 was violated. The

Government contended that the trial court’s refusal to

obey Rule 30 was harmless. In rejecting this argu-

ment, the Third Circuit stated that the Government mis-

conceived the function of Rule 30, and held that “there

should be reversal for non-compliance with Rule 30

even where the defendant cannot affirmatively prove

prejudice. Rule 30, as we have indicated, was designed —

to avoid subtle psychological pressures upon the jurors

which would arise if they were to view and hear de

fense counsel in a posture of apparent antagonism to-

ward the trial judge. . . . These pressures would be

largely imperceptible, and it would be very difficult

for a criminal defendant to prove their presence in a

particular case. . . .” (426 F.2d at 479). In footnote

11 (Id., at 479), the court said: “Every trial

judge and trial lawyer is aware of jurors’ sensitivity to

the attitudes of counsel in their disagreements with the

trial judge.”

&

--81—

As noted above, the court below, without citing a

case, asserted that the Fifth Circuit appears to be in

accord with the rule announced in United States v.

Fernandez, 456 F.2d 638 (2 Cir. 1972). It is evident

that the court below had in mind the case of Hodges

vy. United States, 243 F.2d 281 (5 Cir. 1957), since

it was cited by both the Government and petitioners.

In Hodges, the Fifth Circuit reversed a conviction for

noncompliance with Rule 30, even before the amend-

ment of 1966. After citing the Rule, which then pro- .

vided that “[o]pportunity shall -be given to make the

objection out of the hearing of the jury”, the court

held it was error to require counsel “to state his objec-

tions in the presence of the jury”. The court recog-

nized that at this stage of the proceedings the case was

approaching its “decisive climax”, and referred to the

‘Rule as a wholesome one, “bottomed on good sense

which ought not to be weakened by tacit approval of-

breaches under a too easy application of the rule on

harmless error. . . . Promulgated presumably because

the administration of criminal justice demonstrates that

substantial and irretrievable harm can come if persons

charged with crimes and their counsel are compelled in

the presence of the jury to engage in what to untrained

laymen may appear to be criticism and condemnation

of the Court or the judge presiding over it, the avoid-

ance of that harm can best be assured by genuine ad-

herence to the spirit and practice of the rule. Where the

breach is not technical, momentary or inadvertent, and

the record indicates that the defendant has as best he

might in the awkward embarrassment of the situation

registered opposition to such proceeding, that there may

be no affirmative, actual demonstration of harm does

not relieve the reviewing court from most careful ap-

praisal.” (243 F.2d at 283).. |

wins

In United States v. Huffman, 467 F.2d 189 (6 Cir.

1972), appellant was convicted of mailing letters which

threatened the lives of the President and Vice Presi-

dent. The Sixth Circuit reversed in part because the

trial court failed to comply with Rule 30. After the

court delivered its instructions, the following proceed-

ings occurred:

“BY THE COURT:.. .

“Now, any—any request for any further instruc.

tions? . . . [A]ny objections or exceptions?

MR. WARNER [defense counsel]: May I ap

proach the bench? I've got one or two points.

Are we going to argue that now?

BY THE COURT: We can go ahead and take

them up while they're out.

MR. WARNER: All right.”

After the jury retired, defense counsel stated his objec-

‘tions. In reversing, the Sixth Circuit said the procedure

used by the trial judge “frustrated the purpose of the

rule to provide an opportunity for the court to make

Upon request, counsel must be permitted to make objec-

tions out of the presence of the jury. . . . With the

jury absent, counsel may argue for suggested changes

without risking alienation of the jury.” (467 F.2d at

194-195). Judge Weick, dissented, arguing that de

fense counsel “did make known to the Court his ac

quiescence in and agreement with the action which the

Court was taking by replying, ‘All right.’ He never made

an objection thereto.” (467 F.2d at 196).

D. The court below stated that it was “manifestly

clear” to it that at the time the district court invited

counsel to the bench it was the intention of the court,

ollie

and should have been on the part of all counsel as well,

that the after-instruction conference at the bench was to

be a merely perfunctory record saving session” (481 F.

2d at 324). The court below assumed, erroneously,

that the pre-instruction conference rendered the last

sentence of Rule 30 “inoperative”. The court, it is re-

spectfully submitted, has confused the purposes of the

pre-instruction conference with the post-instruction re-

quirement that defendants in a criminal case object spe-

cifically to those instructions given to the jury of which

they disapprove.

, In Dunn v. St. Louis-San Francisco. Ry. Co., 370

F.2d 681 (10 Cir. 1967), the parties had a pre-instruc-

tion conference pursuant to F.R.Civ.P.51. “An extensive

on-the-record conference ensued in which the requests

were discussed in minute detail. The court indicated

certain areas in which it might reconsider, and stated

that some requests would be given in substance. Each

party noted its objections to a number of requests of the

other that the court had accepted, and noted a blanket

exception to all of its requests that the court shall fail

to give.” (370 F.2d at 683). Thereafter and following

the charge, and before the jury retired, the trial court

stated:

“Now, gentlemen, may it be understood for the

record that all objections and exceptions which

heretofore were taken by respective counsel for the

parties will be considered as if they were now made

at this time and entered into the record, and have

the same force and effect as if repeated on the

grounds heretofore given.” (/d. at 683).

The Tenth Circuit strongly condemned the trial court,

Stating the procedure followed was “turning upside

— a

bh

down the meaning and purpose of Rule 51” (/d. at

683). The court explained that the requirement that

the trial court inform counsel of its proposed action

upon requests prior to their arguments to the jury is s0

that counsel may argue intelligently. The post-instruc-

tion conference “is to provide an opportunity to take

exceptions” (/d. at 683). In emphasizing the importance

of objecting to instructions after they are given, the

court said: “We scarcely need to repeat that the pur

pose is at least two-fold, to make it abundantly clear

to the court not only what is the party’s position, but

in what way the charge is believed to depart therefrom,

and to give the court full opportunity to make

corrections.” (Jd. at 683). As the court stated, the

duty imposed upon counsel of stating distinctly the

matter to which he objects and the grounds of his ob-

jection cannot formally be performed until the charge

has been heard in its entirety. “Usually until then it

cannot be told ‘distinctly’ to what extent a request has

not been given. . . . [A]n a priori exception ‘to the

extent that the request is not given in substance,’ meets

none of the rule’s requirements.” (370 F.2d at 684).

In a warning that would throw a cold chill down the

spine of trial counsel defending persons facing total

prison terms in excess of 400 years and fines in excess

of $700,000" the court said:

“While we do not say that an objection may

online

vance, we warn parties that there is a heavy bur-

den upon them in such event to show that it was

done with sufficient specificity and distinctness,

and we caution district courts to be slow in tolerat-

ing such procedure. In particular a party may ex-

pect to find that he has not preserved any matter

where the request could be thought, on the charge

as made, to have been given in substance. Even

after the charge, it is normally insufficient simply

to refer to the requests by number. . . . And,

finally, we warn counsel that even if the district

court acquiesces in a procedure which is insuf-

ficient, a party may find that his rights have

not been preserved. . . .” (Id. at 684) (emphasis

added).

The Ninth Circuit has also warned of the importance

of stating objections to a jury charge after the court has

instructed the jury. In Kobey v. United States, 208 F.2d

583 (9 Cir. 1953), the attorney for the defense stated,

after the court had instructed the jury: “* * * and I

assign as error the failure to give the instructions we

have requested on the grounds stated.” (Jd. at 588).

In stating that defense counsel had failed to meet his

obligations under Rule 30, the court stated that the

cryptic and sweeping phrase “on the grounds stated”

may have referred to some “suggestions” made by coun-

sel during a conference on instructions. “In our view”,

fanciful matter. In Aday v. United States, 388 U.S.447, this

case at bar—1i8 U.S.C. §1461. Petitioner Aday

ilty on 5 counts based on 5 different mailings

The trial court imposed a prison term of 5

; ,

| oon

the court said, “such a procedure does not meet the

requirement of Rule 30 of the Federal Rules of Crim-

inal Procedure, 18 U.S.C.A., to the effect that ‘No

party may assign as error any portion of the charge or

omission therefrom unless he objects thereto before the

jury retires to consider its verdict, stating’ distinctly the

matter to which he objects and the grounds of his ob-

jection.’ Reliance upon ‘the grounds stated’ if any

grounds were stated—the day before is palpably inade-

quate.” (Jd. at 588) (emphasis in original).

Ziegler v. United States, 174 F.2d 439 (9 Cir. 1949),

cert. denied 338 U.S.822, also cast a doubt on the

procedure of using a pre-instruction conference as a

substitute for proper objections after the court instructs

the jury. In Ziegler, the trial court, before giving the in-

structions, informed counsel of its proposed action.

At the pre-instruction conference, the court informed

the parties that their exceptions were allowed, presum-

ably referring to the instructions requested by appel-

lant, which the court indicated it would not give. The

Ninth Circuit stated that the trial court’s allowance of

the exception could not be regarded as an objection by

appellant to any part of the charge, because, inter alia,

“jt was made before the charge was given. Until the

charge was given, there could be no objection to any

portion thereof or omission therefrom. . . . Appellant

did not object to any portion of the charge or omission

therefrom before the jury retired to consider its verdict.

Hence we are not required to consider” the objections

to the trial court’s charge (174 F.2d at 448).

—

eine

In light of the above, the court below was demon-

strably in error when it concluded herein that:

“Whatever reaction the jury might have had

from seeing or hearing any part of the bench con-

ference was the result of counsel’s own doings and

unnecessary for the preservation of appellants’ rec-

ord of objections. We conclude there was no preju-

dice to any of the defendants as a result of the

procedural error on the part of the District Court

to li

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