United States v. William Groner, D/B/A Lucky Distributors

BROWN, R. Before JOHN Chief BELL, WISDOM, GEWIN, Judge, and THORNBERRY, COLEMAN, GOLD- GODBOLD, BERG, AINSWORTH, CLARK, DYER, MORGAN, SIMPSON, RONEY, INGRAHAM and Judges. Judge:*

GEWIN, Circuit given sitting This court en has banc full and careful consideration to the panel’s opinion expressed in views majority this case and a court has opinion reverse concluded to panel.1 The of conviction entered upon jury verdict district guilty affirmed. appeal summary of On this brief Groner’s contentions will He suffice. (1) contends that: involved books are not viewed case obscene when standards; under constitutional sup- (2) the insufficient to evidence.was conviction; port (3) proceedings his Jury before the Grand were defective prior hearing adversary that a question con- was not first ducted; (4) 18 U.S.C.A. 1462 is un- face; (5) its constitutional on the books unlawfully were seized suppressed; (6) should have been improperly trial court instructed the improperly jury; (7) trial court argument. limited posture adequately The case panel’s opinion. set forth enlarge upon unnecessary deem it Friedman, Houston, Gray, Mel S. Will opinion’s Tex., of the facts. defendant-appellant. recitation * panel opinion January Judges Bell, Coleman, Ainsworth, Dyer, dated In- graham, Cir., Roney join opinion. 475 F.2d 550. On March in this majority Judge ordered this court To extent Clark concurs specially, opinion majority en The case case to be reheard banc. is the to the court en banc on submitted court. October grounds setting There solid als were not obscene. returned panel. finding guilty. As aside the will verdict defendant developed hereinafter, require- however, opinion, aside set support prosecution ment proof ground jury’s verdict on the that it by expert ele- supported by expert testimony. was not misconceived, un- ments We turn now to a consideration necessarily burdensome, and confounds reasoning. panel’s scope Its limited proof. concepts of It is traditional little It noted. from the reach excludes more than a fetishism formulated the expert of requirement the that testimo- We con- name of First Amendment. ny offered, be said those cases which are expert testimony on the clude that ele- holding to fit into the of court obscenity of is not a constitution- ments 1962, States, Cir., Kahm v. necessity. al 78, F.2d described as materials “graced plot, are with is, course, appel no no character an It of that settled development, exemplification no inde- of late Amendment cases court First pendent literary p. independent efforts.” 475 F.2d must make “an constitution 556. It also from excludes reach judgment its al on of the case as the facts questioned those where “the mate- cases is con to whether material involved might terribly depraved rial stitutionally be so protected.” Jacobellis v. lacking anyone so 1964, in candor would 184, 190, Ohio, U.S. 84 S.Ct. question know 1679, without 793, the commu- 1676, 12 L.Ed.2d This 799. nity began norm had Pennekamp Florida, been forsaken in the doctrine quest 1029, 331, 335, writer’s sexual sensationalism” 1946, 328 U.S. S.Ct. appeal “the 1295, where of the material 90 L.Ed. 1297. This means that prurient could appellate be interests an must take hard look court P. quantum proof readers.” at the in order to in rights sure that vital Amendment First short, panel expert found testi- protected. v. Metro Cf. Rosenbloom cases; mony necessary only for the close media, 29, 1811, 1971, 403 U.S. extent, but even to this ill- is an separate 29 L.Ed.2d 296. also the imposition founded and an unwise on Time, Inc., opinions in Firestone prosecution. seen, will As Cir., 1972, 712, explicating 460 F.2d positions was led into error appellate duty of an constitutional court. taken in the trial court counsel go saying appel should It without government and the as to defendant late courts efforts to are zealous their prevailing obscenity. law rights protect including all constitution rights any kind, al but we have been I. charged Court with making an extra in the First effort underlying premise require- Amendment area. expert testimony ment of seems difficulty appellate The material which is claimed to be may experience carrying duty out its obscene in this of bound case consists independent to make an constitutional textual material with sets photo unrelated obscenity as to vel non. government inserts. The offered panel, citing Roth v. United testimony 1304, 1 L. S.Ct. choosing obscenity material, 1498, perceived Ed.2d test proof rely instead for its on mate- to be as follows: together appropriate instruc- rials jury. materials, tions from “1. the court Whether taken appeal whole, primarily defendant of ex- offered the perts psy- prurient of literature and fields interests chology adult; demonstrate the materi- pat- materials are theme of the appeals taken as

“2. Whether the dominant they go ently interest. offensive because whole substantially beyond Other the custom- 354 U.S. at 77 S.Ct. 1304. language find- ary de- in Roth that a of candor their indicated limits pre- nudity; ing necessarily scription of sex and would redeeming presence of social clude the utter- “3. the materials are Whether importance in the material this does ly redeeming social val- appear test. to be an element ue.” however, test, This does not come Roth The first variance from represents apparently from Roth but amalgam Day, appeared Enterprises v. in Manual of the individual views 1432, 8 L. members members former joined Harlan, Ed.2d only by where Justice respec- Supreme Court, their taken from Stewart, to the added Justice dissenting concurring opinions in or tive patently Roth element. test the offensive involving subsequent Roth and decisions has ever No other member of joined court obscenity. prevailing It is not the test fact, addition. Given although by it used the test was the. ele it is there for clear that is basis sug- panel court and trial at the ment of the used numbered test gestion parties. for Ele- counsel panel opinion. part Numbered a ments 2 and 3 prevailing of the test and Element Num- 1966, Massachusetts, In Memoirs v. incomplete in that it to bered 1 fails 413, 975, 1, 16 L.Ed.2d 86 S.Ct. U.S. state the test in context contem- justices the test was restated three porary community standards. as follows: There are two of the decisions “[Tjhree coalesce: elements must Supreme Court in which the test for de- (a) the domi- must be established that termining obscenity has majority opinion. The first is Roth and in a been stated as a theme of the material taken nant prurient appeals to interest whole the other is the in Kois v. recent sex; (b) patently of- the material is Wisconsin, 1972, 229, 92 408 U.S. S.Ct. contempo- fensive because affronts 2245, 33 L.Ed.2d 312. The was relating rary community standards to fragmented in the interim decisions description representation obscenity was where the test involved matters; (c) the material sexual particular and no majority.2 test mustered redeeming utterly social without test We therefore take our value.” from Roth and Kois. Clark, majority of one of the Justice ground Roth, First, five in dissented on the obscenity Roth held obscenity “whether constitutionally that Roth defined pro- within the area of average person, applying contem- speech press. 485, tected at 354 U.S. community porary standards, the domi- obscenity Then, 77 S.Ct. 1304. to define taken as a nant theme of the material the Court stated that obscene material prurient appeal[ed] to interest.” whole material which deals with in man- sex “utterly rejected redeem- appealing without He prurient ner interest. 354 ing portion the test. 487, value” social at U.S. 77 S.Ct. 1304. test to although White, not a member Justice be used the fact finder was stated as “utterly rejected court, also average the Roth person, applying whether to the redeeming element. contemporary social value” community without standards, 975, 413, Enterprises Day (1962), Red 1. See Manual L.Ed.2d 86 S.Ct. 767, nip (1967), 478, 1432, York 386 U.S. v. New 8 L.Ed.2d 639; 1414, (1964), for 18 L.Ed.2d Jacobellis v. Ohio S.Ct. 378 U.S. lineup Supreme 184, 793; 1676, the test Court’s S.Ct. 12 L.Ed.2d Mem (1966), obscenity. oirs v. Massachusetts 383 U.S. test, was the last on the test for test it must This word was reiterated. That determining following: remembered, until Kois mate- v. Wis- consin, per may in a supra, where the court rial be considered obscene when opinion representing applying contempo- person, the views “the curiam 3 interpreted rary community justices seven the Roth standards” the domi- nant of the material taken as a as follows: theme appeals prurient interest. whole ob- “Material be considered any There ma- has been no statement average person, scene when ‘to jority opinion Court as applying contemporary geographical scope term standards, the dominant theme “community”. appeals taken as a whole Indeed, at interest’.” Justice Black his dissent in Ginzburg States, 1966, at 92 S.Ct. at 33 L.Ed.2d 383 U. 16 L.Ed.2d S. Kois Thus it is now clear from pointed fallacy in the test to this as the test for include does not obscenity, saying he uncer- redeeming “utterly the element “community stand- tain as to whether element num- social value.” This was ards” meant were standards which bered 3 test used section-wide, “world-wide, nation-wide, opinion. state-wide, country-wide, precinct-wide point plain At this it is the re- township-wide.” at quirement as to pointed discus- 952. He by these two elements of test used the Ohio, subject sion of the in Jacobellis v. premise the is without and the supra, and where Justices Brennan Gold- requirement reasons for to this the ex- community berg to deemed standards simply tent are non-existent. mean a nationwide or national test. by joined Warren, Chief Justice Justice panel opinion But there is more. The Clark, disagreed. Brennan and Justices inis error as to another element of the Goldberg community to be the deemed and, appear, Roth-Kois test as will the gen- “society large” “people at or the in premise requiring expert other for testi- eral”. The Chief and Justice Justice mony disappears. panel opinion community to Clark deemed standards places weight opting considerable just that, community mean standards expert testimony problems inher- They and a national standard. did not ascertaining ent the fact finder the provable na- not that there was a believe national standard.4 recognized tional It standard. Again, Supreme might the approach Court community decisions result totality. being must be proscribed considered in their the obscene material begin another, with Roth where we find first community the in one but only majority and statement on this ele- in a nation but this was deemed Kois, ment the test until the where communities. diverse Douglas (concurring opin Justice concurred in the reversal at 84 S.Ct. 1676 “consistently infra, ion) ; in Kois. Ginzburg He has adhered v. United power to the view that a is State suppress, punish pornography control or the dis- the definition of hard-core any writings pictures upon (dissenting opinion). tribution of fn. 3 ” ground Redrup ‘obscenity.’ the of their York, 1967, 767, 770, part by v. New 4. This used is not a of the test 1414, 1416, panel; geographic 18 L.Ed.2d 515. indeed limitation no Justice Stewart concurred the result. whatever is stated. Element Number- however, court, His view of the law in is cases ed The district at the pornographical request counsel, required that all save hard-core ma- protected by terial the First Amend- national standard. Ohio, supra, ment. Jacobellis v. young, im- community, opinion Man- in his Harlan Justice highly prudish or joined mature or supra, Day, Enterprises v. ual segment, another leave Stewart, would concluded Justice proper highly educated or statute scientific federal test under sophisti- worldly-wise and move regulating so-called mails the use unmoved. indifferent cated material, 18 U.S.C.A. § obscene decency.” He “a national standard ques- unnecessary reach found it the ef- in each case is “The test Congress could constitu- tion whether book, publica- picture or fect of the tionally “national standard prescribe a whole, upon as a tion considered any decency” have conse- would which class, upon all particular denying sections quence some likely to reach. those whom is might country material access you im- words, determine its other community prevailing comport with average person pact upon yet the national violate standards books, pictures community. The standard. judged as a and circulars must be whole, matter context, The short their entire a na- has not Court enunciated you are not to consider detached any majority separate reaching tional standard test portions in a con- members combination judge circulars, You clusion. making majority in- of the court pictures publications which approval of such a standard. dicated put have been evidence present-day com- standards stated, test is Kois As the yourselves munity. You ask obscene whether the con- does it offend the common “contemporary person, applying community science of ex- standards.” The court present-day standards. pressly recognized room this left prosecution plication of the test. opinion Roth and we advert the trial ing This some latitude the there language scope court under quotes to the of the in Kois came judgment in to Roth in constru- from the jury U.S.C.A., community. in the charge § federal 1461: from ap- ty is, and in men of the munity are ^[*] common conscience of the communi- science “In this the exclusive ^[*] you are a as case, jury, you ^[*] whole, determining to consider the com- judges ladies and ^[*] young and ^[*] of you what gentle- ^[*] alone con- old, the sufficiently uneducated, Both trial courts below reli- educated and gious the irreligious men, proper followed the Both standard. and the — the courts used definition of women and children.” obscenity. addition, In in the Alberts language doWe not construe this as case, ruling dismiss, in on a motion to using community in a national or coun- judge that, the trial indicated as the try-wide sense.5 not think that We do * facts, judging trier of he was each expression was intended to misun- create item as a whole itas would affect the derstanding; it is clear us. Consid- person, Roth, normal judge in the trial ering used, the context in which it is jury instructed the follows: as appear would not to refer to of the 50 all charge community. jury . “. . The test is as not wheth- states a decision, supra, approved er it the would arouse in Roth sexual desires impure thoughts average speaks person or sexual of “the the those comprising segment community”, “present-day particular a standards * again, however, [354 1311] US 5. Here counsel for both urged parties a the national standard on appellate trial and court. large. seem reasonable or community”, “the con It does not common require community.” in federal Those sensible science from cases drawn phrases do a national criminal not connote stand single to assess of ob district or division the determination vel non ard for thinking Connally person See, g., of the scenity. e. v. General Co., 385, 395, community, con- the common consider Construction (1925); community, Ct. science S. L.Ed. community Co., Valley present-day Conley Transit standards Motor (6th 1943); “community” include Law word is to F.2d 692 Cir. Black’s if the Dictionary (4th 1951); people all of within boundaries Ed. Webster’s (Una South, North, Dictionary this vast nation East New International bridged 1961). 3d ed. and West. concept community” sufficiently law Our of “the has been devel- guidance

suggested by give oped adequate the declaration our na- trial Jury framing giv- policy in tional courts instructions to Selection U.S.C.A., jury. lengthy Act of 1861 en to Service rather (Sup.1972) charge approved quote: Both, from we set forth in together supra. That decision policy “It is of the United States Kois, decisions Kahm and the other litigants en- all Federal courts fully cited cases above suffice to furnish by jury titled to trial shall adequate composition basis for the grand right petit juries select- appropriate jury instructions. ed at random from fair cross section point, apparent district or di- At this panel vision wherein was decided on an erro convenes.” (emphasis added) applied neous view of the test determining obscenity. Neither For the trial of cases under “patently “utterly nor offensive” log- community” law federal “the should redeeming social value” ele ically embrace that area from which the are ments included test laid down According is drawn and selected. Supreme Court, nor is the com Jury gener- Act federal munity scope. national Without ally drawn from a division within a dis- more, it should be obvious that the large. trict or from the district at De- imposing prosecution erred on the pending upon population involved supporting proof onerous burden of vary greatly geograph- these districts by expert testimony elements ical area. a few cases a district is as obscenity.6 large state; metropolitan may law, areas the proper boundaries of a weAs view the the district course comparatively small, though be this court in such for to take is to “an in- make population dependent the districts is varied and constitutional on government points out, 6. pornogra- the As in the constitutes hard core prosecuting phy. Ginzburg, Supreme normal course of In some- Court experts, depending times uses on the cir- noted in the cases it had cumstances of Roth, each case. since decided had materials regarded There expert are decisions which make been “as sufficient themselves testimony part prosecution on question” for the determination of the mandatory. obscenity. Klaw, 465, See United States v. 383 at 86 at Cir., 1965, 155; 2 350 F.2d In It re 944. is to noted Gian this state- 1968, nini, 563, Cal.Rptr. involving 69 Cal.2d is not ment limited to cases hard 655, pornography. Indeed, 446 P.2d see But core United States Brown, E.D.Va., 1971, F.Supp. adopted pornog- has not Court a hard core 196, 71-1759, (4 Cir., 31, raphy aff’d No. Jan. distinction or class in the of cases 1972), Wild, Cir., obscenity. Ginzburg, United States v. law of 383 U.S. 1969, 34, holding expert (Dissenting F.2d op. tes at timony required Stewart). where the material of J. agree with second are unable the We as to whether of the case facts quotation inti- constitutionally pro sentence mates, material involved hold, the mate- pro if it does not Jacobellis, supra. In so tected.” ceeding, filthy sufficiently vile, duty to rials are is a concomitant there vulgar of obsceni- the definition to meet the Su laid down the test follow preme Strangely, spite ty. of the above obscenity: determining Court un- quoted description the materials average person, apply whether “to ing contemporary opinion standards, consideration, concludes: der the material tak theme of the dominant perfectly make it clear wish to “We appeals inter en a whole hold, we fail and what what we Kois, suprá, at 92 S. 408 U.S. est.” today in instant case. We hold Having at L.Ed.2d Ct. expressed opinion on the issue have question, we examined here the material involved of whether difficulty applying this test have no fact, In our ina- is or is obscene. testimony expert help bility to do so the basis our part th record on holding testimony expert is re- e prosecution.7 quired obscenity in on the elements of juries

order to furnish and this Court deciding II. objective an basis for with on the issue of rights.” first amendment entrapped judges become When (Page 559) judge- ambiguous thickets of entoiled they Fully agreeing accuracy their own should not use with the made law panel’s description materials, from which it is confusion as barricade Congressional necessity enactments. to discern the for the ambush difficult expert ability, testimony required opin- have the such situations fair, instructions, reach ion. under practical free of sensible and conclusions denigrate the value We do not uncertainty ambivalence, and vacilla- qualified utilization of testi Indeed, judges. experts tion of the —the mony in cases. Parties should approach is dra- wisdom such permitted to use the matically opin- illustrated qualified experts type of case ion. just cases, opinions as in other but their Early clearly in the it is subject not control the should emphatically stated: necessarily of its case or form basis finding have little “We trouble books, disposition. pictures, final the books involved in the instant case publications or other materials involved filthy, vile, disgusting, vulgar, evidence to contradict the serve as and, whole, uninteresting. quite expert. long opinion of the been It has do, however, difficulty fact, judges the rule that triers of equating adjectives these juries alike, accept required are not obscenity.” constitutional definition of expert opinions. Dayton P. L. & Co. (475 page emphasis added.) F.2d 552— Utilities, Public We, too, (1934); have seen the material involved L.Ed. Sartor join unreservedly Gas, this case and v. Arkansas Natural ; 724, 967, (1944) quoted first sentence of the above L.Ed. con- 64 S.Ct. 88 972 judgment. clusion and The et al. A. Ander material is China Union Lines v. O. vile, filthy, vulgar (5th revolting al., 769, so and et F.2d 791 son & Co. 364 specific description opin- 1965); a of it in Food Cir. Webster v. Offshore repulsive nauseating. Serv., Inc., (5th 1191, ion would be F.2d 1193 Cir. and 434 panel decision, January 11, It The dated of the incorrect test. does 1972, preceded explain adherence the Kois and this the dissent’s slavish may point panel opinion Kois. fact a in the face of reason for the use to the 986, L.Ed.2d 152 denied, 92 S. 1970), 404 U.S. cert. (1971). 44, L.Ed.2d 50 Ct. is our As earlier indicated though judge is con Even judge cases view filthy, vile, that the material vinced in examine the materials should first may disgusting, vulgar he neverthe and as a matter volved to determine whether give permit qualified less testimony they protected by are the First of law contrary, such a to the guided by He Amendment. should be example of a presents a classic situation earlier, par the decisions we cited resolved issue which should factual ticularly Roth and Kois. If he concludes impartial proper in by jury under and constitutionally they protected, are judge. There is from the structions jury. they If to the are not be shown per profound in the rule which wisdom they are the conclusion that he reaches proper judges con and after mits involved, protected, the materials not so disregard opinions of sideration to offered, any expert testimony and all experts, equally Many experts. all well necessary appropriate evi other and disagree qualified, in well estab often jury, to the dence should be submitted knowledge and research fields of lished court, from the instructions theology. law, and such as Typical medicine guilt or innocence for a determination disagreements is the tes of such in under the statute of the defendant injury, timony physicians personal U.S.C.A., If it Title 18 volved. They security eases. criminal and social give so, abso chooses to do disagree diagnosis per and as to the weight determina lutely no to the initial centage disability Time involved. the court the materials are tion of again review criminal time courts constitutionally protected.8 qualified equally in which well cases whereby juries diametrically procedure psychiatrists opposed decide are questions complicated in and intricate to each other on the of mental ill issue objective volving subjective insanity. consid or There are now a sub ness engrained deeply in Ameri stantial number of in which dif erations is cases religious they jurisprudence; decide issues ferent can factions same litigating complicated group disputed than that are far more are over eccle books, publications concepts ultimately pictures, or siastical lead whether lewd, resolving obscene, necessity are lasciv the owner other materials filthy. ship property. Kahm of valuable Indeed ious . legal judges, presumed experts, supra, decide the n. 10 Juries of disagree. guilty Experts defendant is ten whether a useful agree beyond doubt in all sorts of their any disqualification. not indicate a reasonable failure does They complicated simply fix criminal cases. do not suffering. They pain the value of believe an case cannot be pass upon the existence of certain men tried without the of an ex pert. Wild, mind of F. tal attitudes and state of See United States v. (2d 1970), particular denied, 2d individual time and Cir. cert. voluntary procedure commonplace in- 8. The confession is described whether a voluntary. prime in the trial of criminal As a matter of constitutional cases. A example prosecutor arises law the is not to hear confession when of- judge the trial has de- fers a the defendant and it and until confession unless freely challenged being involuntary. termined that it was volun- tarily jury, given. Denno, allows the rule decisions Jackson v. absolutely give chooses, if 84 S.Ct. L.Ed.2d so determining weight (1964) Georgia, to the confession Sims (1967), guilt defendant but innocence of the L.Ed.2d 593 judge clearly required procedure de- to make the initial it is for the describe the determining termination of voluntariness. now to all courts known carriage in intent, interstate resolving for questions mon carrier place in “any obscene, lewd, willfulness, sanity lascivi- commerce ous, malice, premeditation, (18 filthy . .” . . or books whether confession insanity, and 1462.) panel decision involuntary. They voluntary are U.S.C. § upon states: constantly decide to what called prudent person would have reasonably finding the little trouble have “We events which done circumstances to case the instant involved in books They transpired. already resolve have enigmatic, and, disgusting, filthy, vulgar, vile, negli- questions of abstruse uninteresting. whole, quite contributory negligence gence, and com- difficulty equat- however, do, fixing negligence, parative the de- often ing adjectives with constitu- these gree negligence plaintiff of the obscenity.” tional definition of percentage by precise the defendant panel its frustration demonstrates points. give seeming inability to effect All determinations do involve by its the statute statement “[w]e issues, many constitutional of them applying completely incapable require do the resolution of constitution- “we test in the instant case” and that questions highest priority al in- incapable completely find ourselves volving liberty life, opportunity and the ruling on this issue.” No lack of desire engage pursuit happiness. pertain- to ing enforce criminal statute supra, States, Roth v. authorizes United transportation of to the interstate to assess “the common conscience lewd, books, obscene, lascivious, filthy community by present-day stand- panel apparent view— impact ards” and to determine the of al- inability deter- stated so because a do leged “upon obscene materials ob- mination whether the material average person community.” ab- scene cannot made here “in the Giving appropriate consideration testimony.” sence of foregoing principles, it is our con panel’s I reconcile the conclu- cannot prosecution clusion that in an ob finding explicit sion with its scenity case should nature not be disgust- filthy, “vile, involved are books requirement sup

burdened with the port ing, vulgar.” are, So the books proof by expert testimony. its finding reviewing effect court’s fully We have the other considered requires jury’s we find- affirm appellant contentions made Gron- ing guilt evi- 'of under the case er and conclude that there is merit in presented. dence any of them. The of convic- here, tion is guidelines affirmed. our use Accurate past based on decisions AINSWORTH, Judge, Circuit Nevertheless, Court, are hard to find. GEWIN, BELL, COLEMAN, whom in Roth v. United DYER, CLARK, INGRAHAM and RO 1 L.Ed.2d NEY, Judges, join (concurring): (as (1957) is, well as agree original panel majority) points I do our with the the law in still out, highest Rei decision that the defendant’s court. See States conviction United using del, L. a common carrier interstate transport commerce to obscene Ed.2d 813 books must be reversed because jury in this case was instructed present expert testimony States did not Roth stand- court under the the trial support its ease. finding guilt carried with ard finding implicit in- The criminal that the statute enacted books Con- gress, lewd, lascivious, obscene, under which defendant con- volved were victed, filthy. makes it to use unlawful a’com- ligence proximate cause to deter- or in the have been able So far we as yet phrases mine, Supreme antitrust such Court has not area of broad as case, expert contract, said, “every any of trade” in that the lack of “restraint obscenity conspiracy.”2 testimony or fatal in an case is combination ... sup- panel, however, a conviction. The expressed by adhere to the I us views ports the Sec- its view with citation of previously in Kahm v. United holding in ond Circuit’s United States Cir., 300 F.2d 78. In that case the Klaw, Cir., 1965, 350 F.2d and the appellant contended “that the Govern- holding in California Court’s jury made ment no case for the because Giannini, In re 69 Cal.2d testify no witnesses were called or Cal.Rptr. 655, (The 446 P.2d 535. Sec- give opinions their to whether as subsequently ond a con- affirmed mailed material here in would expert viction there in which was no tes- come within the definition of obscene Cir., timony Wild, in United States v. material Id. stated Roth.” at 84. The 34.) 1969, 422 F.2d responded argument by Court to the its holding fully jury capable that the “was reject reasoning I Klaw applying of those standards” e. those [i. wring my Giannini and will hands Finally, said, in Roth]. the Court “We despair difficulty of of because may fairly think said be defining meant terms what testimony by anthropologists, amount of “obscenity.” “obscene” or be It cannot sociologists, psychologists psychia- contemporary doubted “that American could ability trists add much of society rejects will not tolerate jury apply obscenity tests those of pornogra- dissemination of hard-core present.” to the materials here Id. at phy.” The federal criminal statute 84.3 precept here cul- reflects our hold, Expert effect, provide ture. To in- that we must turn may application obscenity formation to the fact finder statutes helpful obscenity randomly over not in- “to a collection cases but is chosen dispensable. may Ph.D.’s” as At times it confuse such witnesses matters, swearing help. require more than is to A be- contest abdication of the judicial opposing literary experts judge tween function of social as involving system well turn ease triers of fact.4 a criminal our Under pertaining respon- sanctions law it is the trier into a of fact who is say legal farce. This sible for the tes- determination that such whether timony may not be materials received the trier involved are obscene with- fact, only expli- but that it the definition of term should not be re- as quired. juror, cated in Roth. as the which is so-called rea- drawn average man, sonable from man or deter- cross-section of can experts mine as well embodies the as most whether or reasonable man capable group involved that collective is as obscene within as any making progeny. definition of Roth other of critical deter- It is no necessary more mination difficult for under the fact find- in- er judge. to make such structions from trial determination than it With is to concepts neg- such elusive materials involved this case it McClure, Censorship 1. Lockhart & Ob to make each case as undertake law for scenity presented.” Developing Id., supra, : The at 545. Constitutional Standards, 45 Minn.L.Rev. panel quoted paragraph full excerpted quo- from which we have these Stern, 2. See Toward Rationale distinguished from Kahm. It tations present Expert Testimony Obscenity Use of facts, decision from Kahm Litigation, L. 20 Case Western Reserve discern difference we no substantial (1969). Application Rev. principle. can statutes be made on case-by-case supra, basis and must “courts Stern 566-567. Cf. Judge logic Gewin’s en Part impossible, to II difficult, if not would Judge con- opinion Ainsworth’s and be would banc expert whose find an compelling.1 I therein to be average men currence reasonable helpful to the my however, do, view that adhere to such jury. The views composing the correctly Judge Thornberry distilled the subject to serious would be a witness part three lit- of Roth in the probative essence value their originally and that he enunciated consequence. discern which We can tle I case, Therefore do test is still viable. reviewing as this this in ourselves Judge in Gewin’s initially, in- concur Part I jury the materials did opinion. en banc the definition within are obscene volved expert to reenforce an To seek of Roth. ap Subsequent made it events have gild lily. would be to views our assuming panel parent that our erred expert no more suita- would be Such judge trial settled that the it correctly law in- furnish ble to draw conclusion jury instructed regard than would in this formation At this term the nationwide standard. juries. judges and argument Court has heard panel unwittingly a blow struck geographical Kaplan this v. Cal issue peddler mate of obscene in behalf Crim.L.Rep. ifornia, 71-1422, No. see cynical, motives are “those of rial whose remains outcome gimmickry,”5 made commercial open.2 resolution of But the ultimate difficult for the more Government my judg question does not control give Congress effect will of free of er ment that case was Groner’s involved statute enacted instructed on ror. Since here. standard, the verdict the more inclusive out still it turns would be secure if Believing panel in- decision narrower, local standard law, correct, I af- as a matter would applied. should have been the conviction. firm properly A instructed found CLARK, Judge (concurring): Groner violated U.S.C. because § nothing There is I could it found that the he caused to of substance materials transported to the much too add much that has been be interstate commerce despite expert testimony written in lewd this field of the law. were purpose principal opinion they he offered that is to were not. While concurring origi- protect error in the First confess Amendment does not panel trigger unique nal reversal of I am it does obscenity, this cause. form requiring jury’s that a of reexamination now sure opinion rule verdict at Having appellate evidence in level. cases examined required wrong, required, by precedent, as materials am no I more compound impressed any sophistical opinions would rather than solve problem bewildering expressed experts in this I find area. Groner’s as Raymond Apple study certainly entertain, 5. See views of Rabbi indi- further Report Longford Judge Thornberry’s the Investigating Committee cates Pornography, opinion speculating Coronet be correct p. appli- (1972). Books ed. a national test could be standards charged The crime cable. here position 1. This after con- reached full against the national an interstate offense Judge scholarly sideration Coffin’s prose- sovereign, but one which can Judge intriguing Aldrich’s any many cuted one of districts Palladino, dissent United States provisions many states under the venue (1st 1973). Cir. F.2d difficulty 3237(b). of 18 U.S.C. Despite choosing, on, applying instructing the considerable about the doubts wholly a situation use artificial national stand- some local standard such inartfully apparent. expressed ards which were my former concurrence I still and which prius nonprurience the nisi L.Ed.2d than were holding and other the course Other material triers of fact. judges may ap- obscene, their differed before was not the Court re- publications “[mjaterial may praisal in other marked that of similar be consid- being required per- proceedings; now ered ‘to the obscene when here, son, applying contemporary community I the verdict merits of reach the slightest standards, hesita- the dominant theme of sustain it without adage applies appeals “evil tion. taken a whole Whoever interest’,” eye quoting to this of the beholder” Roth v. lies in the himself disa- smut either deceives 77 S. Recondite, grees rule of Roth. the Ct. 1 L.Ed.2d 1498 with reasoning “redeeming Amendment of abstract First Because the elements so- may importance” “patent from one but cannot conceal cial and offensive- becloud plain expressly the truth that are alluded to in who them ness” views pur- Kois, produced quoted language Roth and from these “books” were veyed ipsa Judges pornography purely these seven conclude that ele- as —res part presently the loquitur,3 of conviction ments are of rec- obscenity indeed, ognized and is due affirmed. was correct test for that — part they have never been test. my opinion, In this conclusion finds no THORNBERRY, Judge, Circuit support in either or Kois. Roth BROWN, Judge, WISDOM, whom Chief GODBOLD, holding GOLDBERG, obscenity was SIMPSON that outside join MORGAN, Judges, protection Amendment, the the First of (dissenting): writing Brennan, majority for a Justice Roth, of five observed obscene my due With all the deference traditionally utterances denied had been majority, I cannot sub- brothers of precisely protection of law be- they expressed scribe to the views expression obscenity of a mode cause as committing By the determination here. redeeming utterly social im- was without unguided jury’s perusal of to a portance : material, allegedly majority of obscene a today permits of claims of this Court slightest having ideas All deeming even re- protection First Amendment fore- importance social —unortho- through process ipsa closed loquitur. a akin to res ideas, ideas, dox even controversial worse, What this novel prevailing ideas climate hateful to ap- treatment of constitutional liberties protection of the full of —have pears to me to on a misunderstand- rest guaranties the First Amend- [of ing, by shared seven members of accepted ment], they unless excludable because majority, of test for deter- upon encroach the limited area of mining whether material obscene important more [Footnote interests. sense. constitutional implicit history But omitted.] rejec- of the First Amendment is panel opin Some six months after the utterly tion published, ion in the instant case was redeeming importance. . social Supreme Court reversed state ob a scenity per (em opin conviction in a curiam at at 1309 U.S. Wisconsin, phasis added).1 ion. Kois v. Perhaps disagrees Admittedly, 1. someone who can take of the Roth the formulation majority up para- upon gauntlet picking test relies so some which heavily graph any paragraph pages quoted in Kois and which — —from expressly only the element refers one these “books” demonstrat- ing necessary appeal. Roth, it mini- contains at say single redeeming But mum iota of social value. necessarily I cannot. formulation excludes other heavily being merely relied Thus, a formu- Since the Kois Court from far Roth, hardly that Kois that has it can be said Justices individual lation suggests rejection majority, so of an element the utter never commanded clearly redeeming was, present the Roth test. value social lack majority, eyes the sine the Roth Judges Thus, seven misconstrue Roth qua obscene, un- and therefore non read too much into Kois. Those de expression. And the vitali-

protected, panel’s make clear that cisions ty continued undimin- element of this three-pronged test formulation of in the most recent Court ished obscenity ques obscenity is correct. But the Kois, case, some of which facing our tion this case was declared apply, as it is how so much which test precisely because not to be obscene reviewing court, jury, are to attempt of an at se- bore “the earmarks stated, Simply the standard. rious art.” 92 at 2247. rights Amendments to turn on the First reading jurors appellate judges prejudices unsupported Likewise they governed by proof “patent or are Roth the claim that offensive jury, concededly, overlook the Roth ness” is but a “variant” of objective by only supply in but which can an reviewing basis advanced Enterprises two Justices Manual Day, for decision court? 82 S. favoring panel’s Foot considerations Ct. L.Ed.2d 639 majority opinion question adequately to this are note 20 of Roth answer clearly panel opinion answers contention: stated in the and need not such a any hardly be reiterated here. But is it significant perceive no difference say, majority answer to as do the in meaning obscenity between the de- dismissing summarily appellant’s sub veloped in the case law and the defini- stantial claim in the that material Code, tion of the A.L.I. Model Penal instant case is obscene as a matter (Tent. 207.10(2) 6; 1957), Draft No. “easy” law, that it is to hold the ma viz.: terials obscene because we find them “ thing if, . . . A is obscene filthy, “vile, disgusting, vulgar, and on whole, predomi considered as a whole, uninteresting.” quite To con appeal prurient nant is to interest: epithets “obscenity” found these with i.e., a shameful or morbid interest falling the constitutional sense is to risk sex, excretion, in nudity, or and if to victim the same confusion both that goes substantially beyond custom the Roth warned and Kois Courts ary description limits candor in against they when that held “sex representation or of such matters synonymous.” are not 354 U.

" 1310; S. at at at 77 S.Ct. at at 1310 n. U.S. (emphasis added). 2246-2247.2 (rather susceptible panel's “particularly two elements than on three-faceted controlling. ignore individuals”) Taken is to the context which the quoted context, formulation occurred. That context was formulation absolutely light “early Justice Roth “test” sheds Brennan’s discussion of the leading redeeming obscenity,” standard of whether social which “al judged merely by patent offensiveness are relevant lowed material value or determining excerpt upon whether material is ob- effect of isolated particularly susceptible persons.” scene. U.S. at 1311. When 77 S.Ct. quoted point regard, compelled “standard” Kois is thus I am context, apparent considered to another error Ginzburg Noting thrust of the statement is that en lane Court. (rather effect of the as whole v. 942, excerpts, (1966), than of L.Ed.2d 31 the Court isolated as under always early standard) average person been had stated that materials cutions. As the First cently said re- the contention As to “national,” requiring “local,” the intro- a decision than rather determining ap- duction of such evidence: standards in the in- recall that it well to peal, prevent we are to [I]f interpret asked case we are stant provision for law’s unusual (not a state statute statute publication’s of a ing value from becom- federal Kois) National and a was involved majority’s passing tool for meaning Allowing Constitution. expression repressing distaste- it finds the boundaries obscenity, thus unusual, simply discomforting, ful, protected expression, coun- to fluctuate witnesses, we must have threatening, county ty by district or district psychological medi- sociological, hardly the confusion ameliorate would expertise, cal, historical, literary of the law. this area that characterizes explain objectively ab- the total “community argue And to redeeming social sence value. applied ex- are those standards” isting Palladino, 475 F.2d United States relatively confined (1st 1973). Cir., federal from which area reasons, respectfully dis- For these I ignore chosen, the fact is to sent. in, appellant been tried could from, dis- either the his selected were

trict from which the materials (the

shipped of Cali- Southern District

fornia), they came to district where Texas), (the

rest Northern District through they any pass- district (offenses en ed U.S.C. route. begun completed in one district and SALES, INC., a Va. GREENMOUNT another). Variety thought Corp. I had Book Store that constitu- t/a Little, Appellees, Harlee rights depend tional do not Gov- forum; ernment’s choice of such anomaly may per- well be the result DAVILA, Jr., At Commonwealth’s J. R. mitting torney Richmond, City parochial Va. diverse for the Duling, of Police Frank Chief S. standards to material said to obscene. City Va., Appel Richmond, for the Judge course, concurring Of Clark’s lants. opinion recognizes, the debate between 72-2073. No. “national” and “local” stand- ards will remain academic Appeals, until the Su- United States Court preme Court decides several cases now Fourth Circuit. pending it, including Kaplan before Submitted March California, No. 41 U.S.L.W. May 23, Decided (Oct. 3, 1972). But whatever the outcome controversy, prob- of that applying

lems inherent in the “redeem- ing social value” 'element of the obsceni-

ty require test will still the introduction obscenity prose- extrinsic evidence in regarded question “as sufficient in themselves for discussion of the whether factors question” the determination advertising of ob- such as the manner of scenity, opinion suggests this Court’s materials were relevant to the determina- previously obscenity. Court has held tion of This required that no case; extrinsic evidence before us the instant the issue erroneous, cases. This be- is how is to evaluate “the ma- quoted cause the context which the terials themselves.” excerpt Ginzburg from occurred was a

Case Details

Case Name: United States v. William Groner, D/B/A Lucky Distributors

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 22, 1973

Citation: 479 F.2d 577

Docket Number: 71-1091

Court Abbreviation: 5th Cir.