United States v. Joe Davis
353 F.2d 614
2d Cir.
1965
Check Treatment

*1 one, unsatisfactory answer, an declaratory judgment suit instituted this for- its until what was

and bided merly time possibility of the academic—the sustaining a re- claim—was reality of the Court

duced to the stark judgment. upshot of it Claims admittedly for is that a case and a claim coverage policy, meet-

within the of the

ing the needs of the Assured both Insurer, protection

full In- liability the form

surer bears no litigation unorthodox.

language of neither the Defense Cover-

age Clause nor Clause was the No-Action bring ever intended about such

artificial windfall.

Reversed remanded. Brachman, Atty., M.

James Asst. U. S. City (Robert Morgenthau, New York M. Atty., U. for S. the Southern District York, Mitchell, of New and Michael W. America, UNITED STATES of Atty., City, Asst. U. S. New York on the Appellee, brief), appellee. for Lyon, Gardens, Y., A. Kew Herbert N. DAVIS, Joe Defendant-Appellant. defendant-appellant. on for the brief No. Docket 29518. LUMBARD, Judge, Before Chief Appeals United States Court of FRIENDLY, WATERMAN and Circuit Second Circuit. Judges. Argued April 1965. LUMBARD, Judge. Chief Decided Dec. 1965. appeal This is an from a conviction jury,

sentence a after in the York, Southern District of New for vio- sending lation of 18 U.S.C. §§ through obscene matter the mails and mailing wrappers. matter in indecent through Counts one five of the indict- charged ment various occasions packages wrappings mailed Davis whose advertising bore an obscene label defend- “party records,” ant’s in violation of § twenty-two twenty- Counts charged mailing of three two in violation of § through twenty-one and counts six Waterman, mailing advertising Judge, Circuit dissented.

filK *2 procuring To the means for the described determine whether the mat twenty-two obscene, apply and ter before us is obscene records of counts we must twenty-three, 1461.1 now of As the familiar violation test: § alleged advertisements it is not that these obscene, “[Wjhether average person, must are themselves finding there be applying contemporary community phonograph records standards, the dominant theme of the find order to the advertise appeals material taken as a whole ments of 1461. violative § interest.” Jacobellis v. 184, 191, State 378 U.S. trial, parties stipulated ex- At 1676, 1680, S.Ct. 12 L.Ed.2d 793 every of each and element istence (1964); Roth v. United charged, except phono- crime that 476, 489, 1 L.Ed. 77 S.Ct. graph records and labels were obscene. (1957). 2d 1498 argument In oral this court both before Further, we are instructed to determine they submit sides declared had patently whether the material is offen remaining without the any testimony issue to Enterprises, Day, Mutual sive. Inc. v. any oppor- kind. The 478, 486, 370 U.S. 82 S.Ct. 8 L.Ed. tunity require and 2d 639 about standards of agree- existed that but was declined Applying tests, these find that both Compare ment. United States labels the records are obscene. 1965). 350 F.2d 155 Cir. The “literary The records are without or sci- only labels, had before it tisements, the adver- any or entific artistic or other form of phonograph records and importance.” social Jacobellis v. State jackets. record Ohio, supra, 378 U.S. at jacket S.Ct. at 1680. Each record The returned a verdict of record “taken as a whole” makes abun- Judge Kaufman, pre- on all counts. who dantly meaning clear the and content trial, independ- sided at then made an .the recording. that, We also find de- ent examination of the evidence and de- spite the feeble at double-en- finding guilty by termined that the mailing label, tendre humor on the jury did not invade Davis’ First meaning intended sole of the label is ob- rights Amendment freedom permissible vious and far exceeds the press speech as the materials at issue level of candor. were obscene and therefore not entitled appellant’s other contentions do protection. to First Amendment He im- not merit discussion. posed $1,000 one, a fine of on count judgment is affirmed. suspended concurrent six-month sentenc- remaining ones counts. WATERMAN, Judge (dissent- Circuit ing) : allege any Davis does not as error I dissent. I would reverse. portion Judge charge Kaufman’s trial, At November procedure employed by the district orally agreed that certain acts court. The us is sole issue before place; took defendant conceded Judge Kaufman, same as was before could call witnesses who whether Davis is entitled to First testify thereby would these acts protection Amendment the labels the commission the offenses would be and records are not obscene. findWe proven mailed, if the material exhibits are obscene under the tests es case, in The ex- were non-mailable. Supreme Court, tablished and we appellant’s yellow gummed hibits were judgment pack- affirm the below. labels affixed to the of his outside twenty-four, charging conspiring during 1. Count Davis with to violate § was dismissed government’s trial on the motion. informing ages, permissible had that he “sexsational” exceeded the level advertising party available, records of candor his First Amendment circular, protects. hand, they two On the other are so containing respective jackets cheaply repulsive those rec- is incredible to prurience person ords. me that reading be excited them or majority opinion, *3 As stated in the anticipation receipt from of of the “sex- only contested issue was whether records, sational” I records. As to the phonograph records and labels were ob- they say me, must that bored and test- scene so that the acts of the defendant in ing subjectively “appealing pru- to the causing through to them be sent the mails rient interest” them did so neither of violated U.S.C. And 18 §§ appeal. Nevertheless, my personal reac- so, major- opinion in of stated tion to these different from ity, guilt the issue of defendant’s was jurors reaction of the twelve and the jury submitted to the without the intro- judge, is not the basis for dis- any duction into of oral testi- evidence ground I sent. would reverse on the that mony whatsoever. The rec- by supported the verdict was not below played jury. ords were to the After the sufficient evidence. exhibits introduced into were evidence jury was that the issue jury, played and the records for them to was whether decide the ma- rested, put in the defense by terial would be deemed obscene average person, applying contemporary no case whatever and moved to dismiss. denied, The motion was and the trial community standards, judge and the went judge charge jury in his to so ade- charge “determining on to in that com- quately explained the nature of the case munity you try standards must to use exception charge that no was taken your experience life, in the observations by party request either and no for an you your every-day made in have affairs explanatory charge additional or was * * * you objec- so that can make an thirty-five made. The was out but upon tive determination based minutes and returned a verdict. you standards of the nation of which by A motion to defense set verdict have been aware.” acquittal denied, aside for an was judge, believing he, and the that as well tending No evidence was introduced to jury, required as the to ascertain contemporary show what these commu- obscene, whether the exhibits were found nity standards the nation were. The by any were test that had he judge confirming in his comments the re- been to able observe. sult the reached stated that his view the trial independent pression” First Amendment case involves The trial level “cannot judge constitutional “rights believed guarantees had in mind that derived avoid that a judgment making of free ex- this on at was based on an travel and based on I consider to be the *(cid:127) [*] [*] practice » my years observations allowing mores “to divine what experience the fact finder readings country the facts of obscenity by as to case whether the to issue of non decide the vel constitutionally pro- material appraising challenged involved is material in light tected.” Jacobellis v. State of a court-elaborated definition of 184, 190, (Bren- obscenity 84 S.Ct. has been established in this nan, J., opinion upon announcing present circuit and was adhered to in the judgment, Goldberg, Court’s in which J. case. The announced rationale of this concurred). necessary practice If it were for me is that “is a function accept responsibility also to many variables, I would and the verdict yellow mailing hold syllogism labels had is not the conclusion'of a “literary only or scientific or artistic of which to find the minor importance” premises, really legis- other form of social but a small bit of Eagle hoc, jury. Flying Publications, standard of ad like the care.” Inc. lation Hand, J., Levine, (1 in L. United States v. United 273 F.2d Cir. 1936). 1960). (2 Accept F.2d in 157 Cir. This same belief is 83 ing reflected jury’s conclusion be a small United 350 F.2d 155 States v. legislation 1965), by July 25, made little Cir. us

bit require sense to decided present prosecution appeal 1965 after testi case mony tending argued disposition had material been and before question unacceptable appeal. was in fact Klaw we In reviewed all community or the material the recent in this cases field that had brought been our arouse the age interest the aver or had attention jury’s research, man. This func been uncovered our view there go mailing has tion led courts to for even several reversed a conviction and to all of obscene further exclude matter which was obtained *4 community by allowing jury appraise offered to standards certain de g., drawings photographs United fendant. E. Kahm v. the “bond- denied, age Cir.), genre,” F.2d cert. 369 Klaw 300 78 see United States v. 859, 949, 157, light admittedly 82 L.Ed.2d at in U.S. S.Ct. 8 18 correct (1962); Finkelstein, People by 11 v. N.Y.2d elaboration of law the trial 300, 367, 661, holding 229 183 N.Y..S.2d N.E.2d court. In that the Government denied, required cert. 371 83 was U.S. S.Ct. to introduce evidence challenged appealed in (1962). material fact 9 L.Ed.2d 100 cf. But Smith v. prurient to interest either the People California, of State of 361 U.S. average typical man or deviate this court 147, 160, 169, 215, 4 80 L.Ed.2d 205 S.Ct. said: (1959) J., concurring; (Frankfurter, “autop- Whatever the Harlan, J., dissenting value mere concurring part, in contexts, in tical” evidence other it part). generally See 76 Harv.L.Rev. readily should not be countenanced (1963). 1498-1501 Otherwise, easily in this area. too analogy jury’s function in a might test a Government’s allow obscenity charg- criminal case in which is jury equate patent to offensiveness jury’s negli- toed function civil a prurient obliterating appeal, to thus gence fairly persuasive long case was as conjunction that has been jury’s decision that certain mate- thought indispensable. rial was obscene could be viewed as the ****** legal expression against of revulsion gave ju- The state of record material impermissibly rors broad freedom to jury way was drawn just because, having convict no more the material sexual dealt with matters. than informative evidence the ma- But we now know standard is they might itself, terial think that national, not local. Jacobellis v. State average person “recog- 378 84 S.Ct. prurient nize” that material has persuaded L.Ed.2d am not I appeal. again, to But whom? In that, without some evidence other than case, jury had insufficient juror’s the records each labels “recognize” evidence even to personal thereto, jury own reaction a can appealed prurient material to the in- appraise accurately such material can average person. terest of the express light in the of national commu- F.2d 167. nity standards the national level com- munity requirements placed tolerance. The view that a Under the we have express upon not is well suited the national the United States sense of what is obscene has led v. some the Government deficient carefully allegedly proof. courts to scrutinize the in its the trial As allowed submitting get material before it to the Government to with- tending introducing any out WHOLESALE, INC., PERRYTON a or labels defendant’s records corporation, Appellant, of either appealed interest v. typical average deviate man or the PIONEER DISTRIBUTING COMPANY recipient that the convic is belief KANSAS, Inc., corporation, OF My brothers tion should be reversed.1 Appellee. proof held was nec contend that No. 7975. essary under 18 a conviction to effect Klaw 1461 in United States U.S.C. § Appeals United States Court of applicable Inasmuch as the is not here. Tenth Circuit. by agreeing expedited the trial defendant Nov. necessary performed the acts that he non- mailed were if the material convict the issue mailable mailability testi “without mony hold that the de kind” “stipulated of each the existence

fendant charged.” every crimes element doing, fact overlook the so In to dismiss after defendant moved pursuant case had tried the *5 places agreement. if one Even

weight on defendant’s obvious whatever

strategy, best would seem brothers at bound

to hold to be that defendant supposed parties practice trial,

existed at the time af must be

therefore his conviction approach I cannot

firmed. With this

agree, to dis motion either. Defendant’s overruling

miss, overruled, and to which position, preserved is now his

defendant

being by us, law of and the reviewed requires

circuit at this us to order time granted for that motion be failure course, proof. Of

of the Government’s

agreement merely an affirma below was agreement

tive that certain facts were

existence, and if Government were

put proof could the Government

them; stipulation but was a never

concerning proof required the limits of

effect a conviction. The defendant nev

er conceded that he was as

in the indictment. “leg-

1. The “divine standards insofar as constitute * * * country” relating the mores of can islative facts” issue attempted obscenity, judicial not cure this defect. This but even notice of this justified certainly ought type divination cannot be not to be allowable unless the taking judicial given opportunity notice of facts to furnish commonly capable bearing known or of certain data on the issue. McCorm- See Perhaps may ju ick, verification. a court Evidence 329§ dicially contemporary community notice