Brief for the US in Opposition — Oakley v. United States (No. 167)

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Questions presented 2.0.0.0... 6c cee eee eee bases 2

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CITATIONS

Cases:

Collier v. United States, 283 F. 2d 780, certiorari denied,

SE ee ns, ce UU AAS ERS RCO Oe ORR ees 7,10

Hirabayashi v. United States, 320 U.S. 81........ 0 06-5. 8

Laun v. United States, 355 US. 339...........6.66.8.. 8

Manual Enterprises, Inc. v. Day, No. 123, this Term. ... 10

Rosen v. United States, 161 U.S. 29................. 11

Roth v. United States, 354 U.S. 476............. 06. 6, 8,9, 11

Smith v. California, 361 U.S. 147......... ec eee ween 10

Sunshine Book Co. v. Summerfield, 355 U.S. 372... ..... 8,10

Womack v. United States, certiorari denied: 356 U.S.

PIE aA tes, AP CORI Ae ay eee ote 7,10

Statute:

18 U.S.C. 1461, as amended in 1958, 72 Stat. 962...... 2-3,7,8

‘ Miscellaneous:

i Federal Rules of Criminal Procedure, Rule 3C......... 11

H_ Conf. Rep. No. 2624, 85th Cong., 2d Sess. .......... 7

S. Rep. No. 1839, 85th Cong., 2d Sess. .......--...-55. 7

(1)

Inthe Supreme Court ofthe United States

OcToBER TERM, 1961

No. 167

Roy A. OAKLEY, PETITIONER

Ue

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. 21-24) is

reported at 290 F. 2d 517.

JURISDICTION

The judgment of the court of appeals was entered on

May 24, 1961. The petition for a writ of certiorari was

filed on June 22, 1961. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether petitioner’s claim, that the statute under

which he was prosecuted is unconstitutionally vague

and uncertain, is relevant in the present case.

2. Whether the materials which petitioner distrib-

uted through the mails were so clearly not obscene that

the trial court should not have permitted the case to

go to jury.

3. Whether petitioner's opinion that the material he

mailed was not obscene was relevant in proving lack

of sctenter.

STATUTE INVOLVED

18 U.S.C. 1461, as amended in 1958, 72 Stat. 962,

provides in pertinent part:

Every obscene, lewd, lascivious, indecent, filthy

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

and—

Every article or thing designed, adapted, or in-

tended * * * for any indecent or immoral use; and

Every article, instrument, substance * * *, or

thing which is advertised or described in a man-

ner calculated to lead another to use or apply it

* * * for any indecent or immoral purpose; and

Every written or printed card, letter, circular,

book, pamphlet, advertisement, or notice of any

kind giving information, directly or indirectly,

where, or how, ur from whom, or by what means

any of such mentioned matters, articles, or things

may be obtained or made, * * * whether sealed or

unsealed; and

3

Every paper, writing, advertisement, or repre-

s'ntation that any article, instrument, substance,

* * * or thing may, or can, be used or appliec

for any indecent er immoral purpose; and

Every description calculated to induce or incite

lalla

a person to so use or apply any such article, in-

strument, substance, * * * or thing—

Is declared to be nonmailable matter and shall

not be conveyed in the mails or delivered from

any post office or by any letter carrier.

Whoever knowingly uses the mails for the mail-

ing, carriage in the mails, or delivery of anything

declared by this section to be nonmailable, or know-

ingly causes to be delivered by mail according to

the direction thereon, or at the place at which it

is directed to be delivered by the person to whom

it is addressed, * * * shall be fined not more than

$5,400 or imprisoned not more than five years, or

both, for the first such offense, and shall be fined

not more than $10,000 or imprisoned not more

than ten years, or both, for each such offense there-

after.

* * * * *

STATEMENT

Following a jury trial in the United States District

Court for the Middle District of Tennessee, petitioner

was convicted on a one count indictment (No. 12.737;

R. 8)' and on nine counts of a ten count indietment

1“R" designates the appendices to the briefs filed in the court of

appeals, °T." designates the two volume transcript of the trial

which we have lodged with the Clerk of this Court. The exhibits

have been certified separately by the clerk of the court of appeals.

4

(No. 12,638; R. 1-7),? charging that he knowingly dis-

tributed through the mails obscene photographs and

circulars and advertisements giving information as to

how and where obscene pictures and books might be

obtained. He was sentenced to a term of imprison-

ment for two years on each of these counts, to run

concurrently (T. 427-428). The court of appeals unani-

mously affirmed (Pet. 21-24).

1. The evidence showed that petitioner conducted a

mail-order business in Gallatin, Tennessee, through

which he solicited orders for, and distributed through

the mails, ‘‘art photos, pin-ups, art books, playing

eards, French books, novels, cartoon humor, [and]

color slides * * *’’ (T. 249). Using fictitious test

names, postal inspector Simon received both solicited

and unsolicited advertisements from petitioner, as well |

as photographs of female nudes (T. 67-69, 114-115).

In April 1955, the inspector received an unsolicited

circular from petitioner which read in part as follows

(G. Ex. 1; T. 70, 72; see count 1, indictment 12,638

(R. 1):

Dear Sir:

Do you like girls?

We have a photographic collection of busty

belles gathered from all over the U.S.A.—cearefully

selected from our private files—artistic and un-

retouched ; dazzling blondes, bewitching brunettes,

flaming redheads. ALL PosEp IN THE NUDE.

* * * * *

2 Count seven of the indictment was dismissed on the inotion of

the government (T. 380).

5

The circular went on to state that to receive these

pictures the purchaser must certify he was over 21

years of age, qualify as a ‘*photographer, student of

photography, commercial artist, painter or seulptor,”’

and agree not to ‘let anyone know where [he received

the pictures], unless they are a very close friend and

[he was] absolutely sure they can be trusted”’ (T. 72).

The pictures were priced from $2.00 per set of ten to

$12 for 12 sets. Similar advertising materials were

received by the postal inspector under other test names.

He also ordered and received photographs of eom-

pletely nude females as well as almost-nudes wear-

ing slight apparel (T. 74-79, 113-116, 119; see, e.g., G.

Exs. 3, 9).

In May 1957, witness W. Anthony Browne received

from petitioner through the mails an unsolicited cir-

cular bearing the title, ‘‘Tenth Anniversary Special

** * Breath Taking Beauties Posed Nude”’, advertis-

ing books of nudes with the further comment that

‘*These Books are Banned by Bluenoses Everywhere’’

(G. Ex. 14; T. 98; see T. 95-97; count 3, indictment

12,638 (R. 2-3)). In February 1958, Richard Lenz of

Edwardsville, Illinois, reeeived an advertising circeu-

lar from petitioner stating, ‘* Mail your orders to Roy

A. Oakley, 627 West Eastland, Gallatin, Tenn-o-see

(sic). * * * In our 11th year of mailing Gal Pics from

Gallatin all over the globe’? (G. Ex. 13; T. 90; see

T. 86-89; count 4, indictment 12,638 (R. 3-4); see also

T. 83-86; G. Ex. 12).

Petitioner testified that he received 150 to 200 letters

a day containing orders for his material or request-

6

ing his catalogue (T. 259-260), and that he had filled

orders from each state of the union and some 40 or

50 foreign countries (T. 260). He stipulated that he

had mailed all of the material as charged in counts

1-6 and 8-9 of indictment 12,638 (T. 181, 197). When

he was arrested by inspector Simon, he was found to

be in possession of a mailing list containing several

thousand names (T. 121).

2. In instructing the jury as to the standard it should

apply in deciding whether the material petitioner sent

through the mails was obscene, the trial judge quoted

extensively from this Court’s opinion in Roth v. United

States, 354 U.S. 476 (see T. 394-397), and, in addition,

charged as follows (R. 400-401) :

In determining [obscenity] the question is

whether or not, to the average person, such mate-

rial or any such material considered as a whole

and applying contemporary community standards,

whether the dominant theme ef such material

would appeal to prurient interest. It is not

whether it appeals to you as an individual as hav-

ing primarily a theme of this kind or whether it

appeals to prurient interest, but it is whether to

the average person of the community applying

these contemporary community standards it would

have this effect or impact; and, as I stated a mo-

ment ago, the material itself must be looked at in

its entirety. You will not consider just one de-

tached part of it, but you will view the entire item

of evidence itself and determine what its dominant

theme is, applying these standards and consider-

7

ing the evidence introduced here before you in its

entirety.

The Court further instructs you in this case that

reproductions of the human nude, even in unre-

touched form, are not, without more, obscene, * * *

nudity per se is not obscene, the test being * * *

whether or not the dominant theme of the material

appeals to the prurient interest: Would it have that

effect on the average person of the community

applying contemporary community standards ?

ARGUMENT

1. The argument petitioner makes (Pet. 6-9) that

18 U.S.C. 1461, as amended in 1958, is unconstitu-

tionally vague was hefore the Court in Collier v. United

States, certiorari denied, 365 U.S. 833, No. 571, O.T.

1960, and Womack v. United States, certiorari denied,

365 U.S. 859, No. 717, O.T. 1960. As in those cases,

the clause challenged by petitioner is **[w]hoever * * *

knowingly causes [non-mailable matter] to be delivered

by mail according to the direction thereon, or at the

place at which it is directed to be delivered by the

person to whom it is addressed * * * .”

of the amendment was to make a violation of 18 U.S.C,

1461 a continuing offense, permitting prosecution, net

only in the district where the mailing occurred (as

under the pre-1958 statute), but also in the district of

delivery and the intervening districts. See H. Conf.

Rep. No. 2624, 85th Cong., 2d Sess.; S. Rep. No. 1839,

85th Cong., 2d Sess. In the light of this purpose, it

is difficult to see how the language of which petitioner

complains is vague or indefinite.

The purpose

8

In any event, petitioner's sentence on the one-count

indictment returned in Florida and transferred on his

motion to the Middle District of Tennessee runs

concurrently with the sentence imposed on the Ten-

nessee indictment (the ten-count indictment). Since

the total sentence is supportable on any one of the

counts of the Tennessee indictment, which charged

unlawful mailing, prior to the 1958 amendment of 18

U.S.C. 1461, petitioner is in no position to attack the

amended language on which the Florida indictment

was based. See, e.y., Lawn v. United States, 355 U.S.

339, 399; Hirabayashi v. United States, 320 U.S. 81, 85.

2. Petitioner's contention (Pet. 9-17) that the courts

below applied a standard of obscenity in conflict with

the decisions of this Court in Roth vy. United States,

354 U.S. 476, and Sunshine Book Co. vy. Summerfield,

399 U.S. 372, is without merit. The trial judge ex-

pressly instructed the jury (supra, p. 7) that

reproductions of the human nude, even in unre-

touched form, are not, without more, obscene.

** * nudity per se is not obscene * * *,

The test for the jury, as the court phrased it, was—

whether or not the dominant theme of the material

‘appeals to the prurient interest: Would it have

that effect on the average person of the community

applying contemporary community standards ¢

Other portions of the charge defined prurient interest

in the terms of the Roth decision. The court of appeals

affirmed on the same principles (Pet. 23-24).

9

Essentially, petitioner’s argument is that there was

not sufficient evidence to permit a jury to tind that the

material he mailed appealed to the prurient interest,

since the case involves only human nudity, and the

human nude, as portrayed in art throughout the ages,

is not obscene. But, as the Roth opinion makes clear

(3594 U.S. at 487-489), and as the trial court below so

carefully instructed the jury, human nudity in art is

one thing—the human nude so posed as tu appeal to

the prurient interest is quite another. Certainly it

Was not unreasonable for the jury to find that the

photographs involved here, with their full exposure

of the genital area, did appeal to the prurient interest,

especially when viewed in relation to petitioner's

method of advertising his wares, in whieh he used such

phrases-as ‘‘busty belles*’

the nude’

representations of selling only to adults who were

. unretouched’’, ‘tposed in

,

, ‘banned by bluenoses everywhere"; his

qualified as ‘*student[s] of photography"; and his cau-

tion against disclosure of the source of the pictures

]

except to ‘‘close’’ and ‘‘trusted’” friends. Nor was it

unreasonable for the jury to conclude in light of the

evidence that this advertising did indeed give informa-

tion where obscene material could be obtained. As the

court below stated, ‘‘'The subjects were so posed and

slight apparel so added on some of the pictures, as to

enhance the prurient response invited. Defendant’s

advertising material gave subtle assurance that lustful

curiosity would be satisfied by purchase of his mate-

rial’’ (Pet. 23-24). Thus, it cannot be said that pe-

titioner’s material was not obscene as a matter of:

a 10

law. At most, there was posed a question of fact for

the jury to resolve.

Nothing to the contrary was decided in Sunshine

Book Co. v. Summerfield, supra. As the Fourth Cir-

cuit pointed out in Collier v. United States, 283 F.

2d 780, 782, certiorari denied, 365 U.S. 833, the photo-

graphs of nudes which the lower courts had erroneously

held to be obscene in the Sunshine case were ‘‘only

part of a publication devoted to the promotion or dis-

cussion of a particular idea such as the cult of nudism

** #* 9) Here, as in the Collier and Womack cases,

petitioner was engaged in nothing more than the

peddling of obscenity. See also Manual Enterprises,

Inc. v. Day, pending on petition for a writ of certiorari,

No. 123, this Term.

3. Contrary to petitioner’s final contention (Pet.

18-19), the trial court was correct in charging the jury

that it was ‘immaterial whether the defendant knew

or whether he believed that the materials mailed by

him were obscene”’ (T. 399). Clearly, there is a vast

difference between the requirement of scienter (see

Smith v. California, 361 U.S. 147) and the question of

petitioner’s opinion that the material he had mailed

was not legally obscene. As the trial court properly

charged: ‘The inquiry for you is whether the materials

were, in fact, obscene; and that does not depend, of

course, upon the defendant’s opinion. The defend-

ant is merely required, insofar as knowledge is con-

cerned, to know the contents of the materials and to

know that he deposited or caused to be deposited such

materials in the United States mails’’ (T. 399). See

11

Rosen v. United States, 161 U.S. 29, 42; Roth v. United

States, supra, 354 U.S. at 491. Moreover, not only

was there no objection to this instruction (see Rule

30, F.R. Crim. P.), but one of petitioner’s counsel ad-

vised the trial judge that he thought ‘‘it represents the

law’’ (T. 368-369, 377).

CONCLUSION

For the foregoing reasons, it 1s respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

ARCHIBALD Cox,

Solicitor General.

HERBERT J. MILLER, JR.,

Assistant Attorney General.

RosertT 8S. ERpDAHL,

JEROME M. FEIT, .

Attorneys.

Avavst, 1961.

wv U S GOVERNMENT PRINTING OFFICE 196) 608207 aia