UNITED STATES of America, Appellee, v. Joseph N. PALLADINO, Sr., et al., Defendants-Appellants.
No. 72-1005.
United States Court of Appeals, First Circuit.
Jan. 7, 1974.
499 F.2d 499
I agree that when the Government anticipates or should anticipate the need for using mug shot photographs, it should take more effective means than taping to disguise their nature. But here the Government had no reason to anticipate the need, and we do not even know in what respect its taping failed to measure up to the desires of Judge Clarie, who handled the matter fairly under the emergency that had unexpectedly developed. A degree of perfection attainable only by 20-20 appellate hindsight is not required of trial judges.
See also 428 F.2d 606.
Herald Price Fahringer, Buffalo, N. Y., with whom John A. Pino, Boston, Mass., was on brief, for defendants-appellants.
Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
This case, again before us after having been vacated in the Supreme Court, is an appeal by the defendants, father and son, from joint convictions on three counts of a nine-count indictment charging the mailing of obscene matter in vio-
The primary issue requiring resolution is different in kind from those with which we originally contended. We must now decide to what extent the standards articulated in the recent Supreme Court decisions dealing with state obscenity statutes2 apply to this federal case retroactively. 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. On the other hand, the remand of the entire group of pending obscenity prosecutions suggests that to the extent that Miller creates protections not afforded by prior standards, these cannot be denied to persons whose prosecutions have not terminated. Therefore with due regard for First Amendment rights we adopt the position that on remand the material allegedly in violation of
The feature of the Miller decision which affords a safeguard not provided by the Roth-Memoirs test is the requirement that applicable law specifically define that sexual conduct whose description is proscribed.4 The federal statute,
On our first independent review we held that one of the materials before us, “Anal and Oral Love“, had some redeeming value; this must stand. And we retain the ruling that because the jury held “Photographic Deck of Sexual Love” to be non-obscene, consistency requires that the advertisement (which contained a partial presentation of the same photographs) be non-obscene as well. We now consider for the first time whether the advertisement for the magazine “My-O-My” portrays “[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated” or “[p]atently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals“, under
There remain three books, “A Report on Denmark‘s Legalized Pornography“, “Scandinavian Pornography“, “Animals
Here we deal with a federal statute proscribing use of the mails to convey obscene materials. In Miller the Court held that in a California prosecution determination whether the material appeals to the prurient interest and goes beyond customary limits of candor may constitutionally be limited to “contemporary community standards of the State of California“. 413 U.S. at 31, 93 S.Ct. at 2620. The Court, in dealing with federal statutes, made it clear that the elements of obscenity which it spelled out for states also applied to federal statutes, but stopped short of applying to federal statutes its holding as to community standards in evaluating those elements.8 Its discussion of community standards was entirely confined to cases involving state prosecutions (e. g., Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964)); the recognition of diversity in tastes among the states which “is not to be strangled by the absolution of imposed uniformity“, 413 U.S. at 32, 93 S.Ct. at 2620; and the state-oriented argument that state standards would impermissibly burden interstate commerce, id. n. 13. Nevertheless, the Court manifested its wider skepticism as to national standards for all purposes by referring to the concept as “hypothetical and unascertainable“. Id. at 31, 93 S.Ct. 2607.
While the path of gracious acceptance of its role by an inferior court might be seen as that of applying the dictum and strongly expressed feeling of the Supreme Court to the federal statute before us, we think the step is not one to be taken without an explicit holding from that Court. In Manual Enterprises v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (1962), involving this very statute, Mr. Justice Harlan, who announced the judgment of the Court, wrote, for himself and Mr. Justice Stewart:
“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 constitutionally prescribe a lesser geographical framework for judging 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 community standards of decency.”
In this circuit we have ever since applied this statutory construction. Excellent Publications, Inc. v. United States, 309 F.2d 362, 365 (1st Cir. 1962). See also United States v. One Reel of Film, 481 F.2d 206 (1st Cir. 1973).
An additional support for this statutory construction lies in the policy expressed in Miller of respecting state prerogatives. For while the application of a national standard of offensiveness may trench upon the freedom of the most permissive states, the standard inherently is more permissive than that of the most restrictive states. In contrast, the goal of honoring the diversity of tastes in the various states would be more drastically subverted by the application of state standards in that a state could not receive otherwise acceptable materials simply because the state of mailing or of transit happened to be more restrictive. A state, in short, may very well wish to protect itself, but not wish to be overprotected by those at the restrictive end of the national spectrum.
All this is not to say that evidence of national standards of prurient appeal and patent offensiveness will be unmarred by serious dispute. But neither can we say that such evidence will never be clear; we can readily imagine testimony of the long standing wide acceptance of a book being of vital importance in a prosecution in a rural federal district. And the effort to identify a national standard of tolerance would seem to differ only in degree from the effort, upheld in Miller, to identify a state-wide standard in such a large, populous, and variegated state as California. In any event, elusive as the concept of national standards may be, that factor does not in our view justify departing from past precedent and inviting the problems we have sketched above, without a specific license to do so.
While in our earlier opinion, we said that we would require expert testimony on each element of obscenity, and while at least one member of the court strongly believes that experts on national standards may on occasion be of crucial importance, we are unable to say, in light of Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n. 6, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), that experts are required on this issue. Of course we adhere to the position, not affected by Paris Adult, that experts are permitted. United States v. One Reel of Film, 481 F.2d 206, 209 n. 3 (1st Cir. 1973).
Finally, because some of the material in the instant case may involve appeal to deviant groups, we leave to the district court the decision whether expert testimony should be required on that issue. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n. 6, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), citing United States v. Klaw, 350 F.2d 155, 157-168 (2d Cir. 1965).
We summarize our rulings as follows:
The judgments below are reversed on “Anal and Oral Love“, “Photographic Deck of Sexual Love” and the advertisement for “My-O-My“.
The judgments on “A Report on Denmark‘s Legalized Pornography“, “Scandinavian Pornography“, “Animals as Sex Partners” and the advertisement for “Sex Tools for Erotic Pleasure” are vacated and the counts based on these materials are remanded for retrial subject to the rulings made in this opinion.
ALDRICH, Senior Circuit Judge (dissenting).
I am not happy about the court‘s opinion. In the first place, the Court majority in Miller evinced no compunction about convicting Miller by a definition of obscenity that was not in effect at the time of his publication. Having in mind the mass of uncertainties in this field, see my prior dissent, I can see why the Court felt that the First Amendment did not bar an adverse change in the rules. If not for Miller, why for Palladino? This case does not fit the normal situation where the courts have had to determine whether constitutional principles are to be applied retroactively. With all respect, I do not find the Fifth Circuit‘s decision in United States v. Thevis persuasive. The Court sent this case back to determine “in light of Miller, . . . .“* and I would apply the Miller definition, not Roth‘s or Memoirs’.
By the same token, we are not required by past decisions to give the defendant the benefit of national standards. Today, as a modest observer, I believe that national standards is a many-headed hydra, only ingenuously to be spoken of as within the competence of any expert short of Hercules, and beyond the mastery of any juror.
It is true that the same might be said to a considerable degree as to the standard of an area of the size and variety of the state of California indeed it has been suggested that the objection may prevail even in a single county. Hence, we cannot pitch our tent upon a firm bed of logic. Nevertheless, I would prefer partial practicality to what, with all due respect, I can only regard as a delusion. I respectfully dissent. Since my dissent is inoperative, I need not consider further what would be its effect in the case at bar.
* The Fifth Circuit‘s First Amendment ruling was a bare assertion, and got off, I suggest, somewhat on the wrong foot by misquoting the mandate as remanding for further proceedings “not inconsistent with” Miller, etc., rather than “in light of.”