United States v. Edward A. Wild, Jr. And Louis Corrado
422 F.2d 34
2d Cir.
1970
Check Treatment

*1 America, STATES UNITED Appellee, Corrado, WILD, Louis Jr. and A.

Edward Appellants. 32510-32513. Dockets

Nos. Appeals, Circuit. Second 11,1969. Sept.

Argued 29, 1969.

Decided Oct. 2,1970.

Rehearing Feb. Denied

QK properly seized, lants was we affirm the convictions. question The can be

disposed merely stating that these unquestionably por slides are hard core nography. prompt The color slides which ed types. general were two group presented The first a nude male, lying facing camera, or seated holding touching or penis. his erect group depicts second of slides two nude males in the act of fellatio. Gilbreth, Atty. William J. Asst. U. S. is no There conceivable claim that (Robert Morgenthau, Atty., M. for U. S. redeeming these color slides have social York, the Southern District of New value, regard and none was made. With Roger Douglas J. Hawke and Liebhaf- S. to the other two elements which the Su- sky, Attys., brief), for Asst. U. on the S. preme specified pres- must be appellee. finding ent for obscenity appeal — Levy, City Herbert Monte York New prurient group likely interest of the Gartlir, Hofheimer, (Hofheimer, Gott- allegedly to receive the obscene ma- Gross, City, lieb & York on the New patent terial offensiveness under brief), appellants. contemporary community standards —the LUMBARD, Judge, appellants argue Before Chief that the Government in- Judges. FEINBERG, present- SMITH and Circuit troduced no evidence other than spe- the slides themselves. More cifically, appellants contend that Judge: LUMBARD, Chief designed slides were for a male homo- Wild, Jr., Edward A. Louis Cor- jury sexual audience was appeal nado from their convictions unable to decide whether there was an jury in the of New Southern District prurient to the interest of that violating York of Act. Comstock group expert testimony. They found U.S.C. § guilty conspiracy use mails believe, We do not conveyance delivery of obscene color urge, in effect that the Constitution re photographs slides and numerous quires produce expert Government mailings of color slides and in- obscene testimony prurient regarding formation how to obtain them. community contemporary interest and years im- Wild sentenced to two every obscenity standards case. prisonment; execution of a similar Compare Frankfurter, J., concurring in suspended, sentence Corrado was California, Smith v. 164- placed probation and he was years. for two 167, Harlan, J., concurring part and dis appeals questions: senting part, Id., raise two whether testimony the slides are in fact obscene 215. It is clear that such necessary and whether searches on certain facts such as by postal inspectors presented conducted and those in United States v. deputy proper. marshals heavily As we 350 F.2d 155 photographs find appellants. However, that the slides relied on presents peculiar and that the material which was against appel- problems proof.1 introduced 1. Klam involved obscene book scribed to the Court as “sado-masochistic.” containing stories, drawings, describing prob- lets F.2d at photographs “bondage” genre, confronting jury de- lems which had to contempo- public, in cases such as interests of the hold expert rary ad in similar standards of fact needs the trier baffling above, matters, problems no claim and other there As noted vice. *3 right importance. precious redeeming Cf. of free social of opinions speech, En A Motion Picture discussd the several v. United States 147, Curious-Yellow,” 404 F.2d v. California. U.S. [361 Am Smith titled “I 215, 1968). group But of slides 80 4 L.Ed.2d we 205] One S.Ct. 196 Cir. problem the in the case at graphically depicts a act and no such sexual stark, the erect unretouched group bar. are attention These other focuses text, possible photographs no genitalia male models. nude of the —no suggested ap prurient scienter, context, of no of avoidance the issues this contemporary proper purpose, com- no conceivable peal offensiveness munity permit be dealt standard which would can standards help. expert of jury As the indiscriminate dissemination without a stated, material, alleviating cases “in the artistic Supreme has Court ob reflect has decided overtones. These exhibits Court in which this nude, beyond v. Roth, scenity questions [Roth since morbid interest any They States, 476, customary S.Ct. of 77 limit candor. 354 U.S. United regarded ‘utterly redeeming 1304, it has social without 1498] 1 L.Ed.2d * * * importance.’ in themselves sufficient materials as question.” of the for the determination photographs think that so We Ginzburg States, U.S. 383 v. United conceivably possible obscene —it 942, 944, 463, 465, L.Ed. 16 86 S.Ct. they fact be so obscene —that Simply hard (1966). stated, 2d 31 photographs These uncontrovertible. pornography this can as core Womack, are such. United States v. speak itself.2 does U.S.App.D.C. 111 294 F.2d 205- (footnote omitted), denied 206 cert. remarkably similar 365 U.S. 81 S.Ct. un- 1461 was under section conviction 822 affirmed, Judge Prettyman animously also, States, Kahm v. United 300 wrote: (5th Cir.), 369 F.2d 78 cert. denied difficulty en- Most (1962); 8 18 L.Ed.2d the law con- discussion of shrouds the Davis, develops obscenity cerning filth 1965), cert. denied 384 U.S. maga- consideration books 1567, 16 953, 86 problems Here arise zine articles. Enterprises Day, Cf. Manual scienter, meaning and effect 489-490 and n. proper Harlan, whole, (1962) (opinion the work 8 L.Ed.2d 639 the value any appeal judge prurient oth- to the interest themselves, group. the Court the booklets er than stated: phrase pornography” 2. The “hard core “ * * * jury widely insufficient evi- been used. Justice Stewart re- ‘recognize’ that the ma- marked “I even to know it when I see it.” dence Ja- appealed prurient Ohio, 184, 197, interest cobellis terial S. average person. 1676, 1683, (1964) It had absolute- Ct. evidentiary (concurring ly opinion). discussing from which to basis any prurient comment, ‘recognize’ recently to the Professor Freund stat- typical : ed “What I of the deviate or believe interest Justice Stewart really recipient thing you mean is never defined the sort of class that strikes —a patently, filthy picture, stag movie, F.2d at 168. record.” perhaps recipients string of obscene think the class of words with- clearly defined, Freund, much in case was between.” P. Po- graphic Obscenity, litical Libel F.R.D. believe slides — provided basis decid- sufficient are — charge Judge jury J.). to the rado and Bonsai’s the officers returned light properly defined apartment completed Corrado cases; Supreme relevant begun search there earlier. jury capable applying tests those items number of to this material. cameras, apartment: projectors, at each Finally, appel note that photographic equipment, film, con lants’ own of the slides evaluation slides, forms, advertising order bro finding pru firms the chures, records, envelopes, customer York, rient v. New interest. Mishkin bearing stamps rubber the names of 958, 16 L.Ed. operated by mail order appel businesses (1966); Ginzburg 2d 56 v. United lants. *4 942, 463, 383 U.S. 16 L.Ed.2d 31 86 S.Ct. 1966, February 2, appellants On filed (1966). slides, considering the the suppress a notice of motion to and return jury had the before it brochures suppression hearing the items seized. along appellants mailed 31, 1966, on was held March 30 and and sample slides. These advertisements parties the submitted affidavits and type to seem us to constitute up Sep- memoranda on motion until pandering which is relevant to a deter 15, Judge day, tember On that Although appel obscenity. mination Murphy motion, holding denied the that Judge charge lants contend Bonsai’s that the search at Hicks Street was con- pandering improper, on the issue of was to and sented Corrado that objection por no such was made to this Pierrepont searches at were Street valid charge tion of the trial at and we need Judge as incident to lawful arrests. not consider United v. here. States Murphy validity stated that Re, (2d 306, Cir.), 316 cert. testimony “depends upon searches whose denied, 904, 188, 379 13 U.S. accepted hesitancy no and in (1964). Fed.R.Crim.P. saying accept testimony that contention other main deputy marshals and Post Office search seizure materials inspectors reject and that of Corrado 3 in an without a search warrant suppress ap- to Wild.” The motion First, rights case violates their under the parently just prior reasserted to trial. Fourth, and Fifth Both Amendments. record of the trial indicates Our review appellants on arrested December were that none of the material seized at Hicks building apartment in an on in and the Street was introducd evidence Brooklyn Pierrepont in Street where testify officers did not about they resided. search; however, arrests were made Government witnesses pursuant to bench warrants issued fol- testify searches at lowing indictment, Pierrepont do Corrado Wild Street dispute apartments, slides, lawfulness of their ar- of color and boxes concededly rests. As an stamps, incident to rubber orders customer postal inspectors arrests, lawful mostly from order Corrado’s forms — deputy immediately marshals conducted apartment offered evidence. —were Judge evidence, them searches both the and Corrado Bonsai received Wild objection, over defendant’s we hold place. apartments where arrests took proper. that his action was addition, interrupted the officers their apartment search of and went Corrado’s It as has been held items such apartment— to third with Corrado appellants’ those received in at “office” an on Hicks Brook- Street trial incident be seized a lawful lyn After com- searched there. arrest case. United —and Klaw, (S.D. Street, F.Supp. pleting v. 12 search Hicks States 227 Cor- 15,1967). Opinion (September 34012 3. Memorandum and Order No.

38 grounds, Kansas, 1723, N.Y.1964), 12 on 378 84 rev’d S.Ct. 1965). (1964), Marcus v. Cir. F.2d 155 Warrants, primarily Judge Wyatt Search 367 U.S. S.Ct. relied These Rabinowitz, 6 L.Ed.2d 1127 v. inapposite (1950), a case cases are since involved 94 L.Ed. 653 recently state massive seizures books been overruled which has California, Supreme v. statutes which authorized warrants Chimel Court. obscene materials seizure recently seeking step proceedings we have civil fully prospective in this destruction. held Chimel Bennett, 415 F.2d and evi instrumentalities United States 9, 1969), September thus it dence of the crime lawfully application case. were indicted and arrested. We ar- incident Marcus and the search believe We hold that proscribe appli proper Books under Rabinowitz. can be read to rest ordinary in also, cation methods of Harris v. United itiating ob 91 L.Ed. Productions, Way scenity Milky cases. See dispute ma There can be Leary, Co., c. New York Feed In trial sub terials taken and used at (S.D. Leary, F.Supp. Inc. appear *5 ject only they to Not did seizure. 1969) (three-judge N.Y. October to and means” be “instrumentalities court). F.Supp. supra, crime, see Judgments evi also “mere at but conviction affirmed. dence,” incident which seizure Hay proper in held Warden arrest was Rehearing Petition On den, 18 L. Ed.2d 782 PER CURIAM: Appellants petitioned for rehear- have used in evidence The items not ing of our decision in States apparently re trial have been 1969), Wild, claim- Cir. Oct. by of this the Government. Some tained ing that we overlooked an interven- material, bro have the slides and such as panel decision of another of this chures, may as contraband. be retained court, incorrectly that we have stated Trupiano v. United position legal and that arrests 92 L.Ed. 1663 particularly unlawful. other items — photographic equipment seized that intervening The referred to decision by returned the Gov —should have been Cahn, Corp. v. is Bethview Amusement appellants’ coun ernment at least when decided aft- F.2d an demand sel on made oral argument er the in this case but date Attorney Assistant United States some before our decision. three weeks obtained. after convictions were grew prosecu- a Bethview out of criminal overlong deten While condone “Obscenity” New tion for under York items, to see how this of such we fail tion McKinney’s Law, Penal State Consol. validity appellants’ con can affect Laws, 235.05(1), c. Armed § victions. warrants, police with search and arrest plaintiffs specific arrested in that case conjunction officers claim with the allegedly print a of an obscene seized been items should have seized that brought picture motion film. appellants present Plaintiffs suppressed, a broader obscenity suit in the United District Court argument an hearing of New the Eastern District York prior adversary a without requiring re- an order obtained unconsti- are on the issue of affirmed on Quantity turn of film. We of Books v. tutional ground adversary hearing Second, panel analogized the Bethview necessary issue of single before print picture “a of a motion film” by police. film large be seized could to seizure of “a number of books” Appellants claim that the decision instances, any because in both without “in prior Bethview is irreconcilable conflict” adversary hearing, large group a with our here. decision is denied access material be entitled agree do not that conclusion. protection. Thus, amendment the Beth- First, court did not the Bethview panel pointed single view out that a mo- a before it an from conviction picture print tion could be over seen intro- which the film been 4,000 people in week. This is one evidence; therefore, it duced did not into true, of allegedly other kinds of obscene hold that such a conviction would have material, g., single copy maga- e. a a panel or- be While the there reversed. underground newspaper, zine or of an cf. say returned, dered the film did not Way Milky Productions, Leary, Inc. v. print be used could not F.Supp. (S.D.N.Y.1969), or a outstanding trial on single copy of a slide similar those charge. fact, the court panel here. The involved Bethview precisely Bethview indicated to the con- improper, not hold that it is after a law- trary, 416 F.2d at 412: arrest, ful to seize as evidence a few samples this kind of print contend that a material, picture can, by each of its is needed for na- the motion ture, only seen prosecution. people. be purposes There few words, ways panel, the Bethview as did number of we, looked to accomplished rationale of seizure of Kansas, of Books print film. court 210- can direct that a reasonably

be made available *6 (1964), Warrants, prosecution; subpoena Marcus v. duces tecum Search can be used. (1961), proscribed, as we suggested Finally it is that unless pointed out, “massive seiz- police or other local authorities ures of books under state statutes which possession of actual the film authorized warrants for the seizure of pending adversary required pro- step obscene materials as a first in civil ceeding, the distributor take ad- proceedings seeking their destruction.” vantage delay, example, for id., As we stated in our opinion, we do shipping jurisdic- film out “proscribe believe that those cases offending by cutting tion or application ordinary methods scenes. If there is a real threat initiating to ob- activity it controlled can be cases,” scenity g., by seizing e. as inci- parte restraining ex order. evidentiary dent ato lawful arrest sam- ples Wilkinson, Tyrone, Inc. material. Ac- See (4th cordingly, cert. denied we conclude that our decision L.Ed.2d and Bethview are not in conflict. (Dec. 15, 1969). case, our issue petition rehearing, In their sup- whether a new trial must be ordered plemented by a motion for leave file because some the seized material was supplemental appendix, used as evidence.1 not believe We argue question that Bethview “thousands of decided that slides” were here, the affirmative. making thus this case a only appellant 1. We note undergo Wild raises to him rather than to a new point. Appellant brief, p. Corrado “would trial.” 25. prefer to have the conviction affirmed as within the rationale “massive seizure” Books, Marcus, Beth- OF The SECOND NATIONAL BANK argument made view. HAVEN, Executor of the Will NEW 2— “any Hamden, seizure” Brewster, us Frederick F. late of Deceased, Plaintiff-Appellee, or unconstitutional small massive—was hearing. prior As in if made without dicated, reject As that contention. we America, UNITED STATES of here and seizure the search Defendant-Appellant. whether prohibited to be so “massive” No. Docket 33779. amendment, simply we Appeals, United States Court of adequate facts. furnished with Second Circuit. may in appendix

proffered supplemental Argued Dec. not show but does taken dicate what was left, tell whether nor what was Decided Feb. merely some all—or included the seizure many slide, —copies particular how of a involved, separate or whether slides were threshold of dissemi on the “were York, 383 v. New nation.” Mishkin short, think we do not now appropriate issue decide con seizure” and

raised “massive implications on a be thereof

stitutional argument inadequate record. lated Accordingly, deny file the leave appendix.

supplemental remaining petition issues in rehearing require discussion. little opinion that did state twice the color not claim that did Ap- redeeming social value. slides had out, however,

pellants point Accordingly, the claim.

brief make *7 by adding opinion we amend the

phrase sen- “at trial” at beginning end De- at 35 36.

tences claim, appellánts may spite we ad- what prior conclusion, implicit in

here our opinion, no re- that the slides have

deeming Appellants’ last social value.

point unlawful their arrests opinion con- in our

was dealt with again

cededly brought to our attention

only protect” “to the record. rehearing petition is denied. pending stay

The motion to the mandate filing petition of certi- for a of a writ subject require- granted,

orari Fed.R.App.P. 41(b).

ments brief, p.