United States v. Rebhuhn

• Decision Date: 13 February 1940
• Docket Number: No. 210.,210.
• Citation: 109 F.2d 512
• Parties: UNITED STATES v. REBHUHN et al.
• Court: U.S. Court of Appeals — Second Circuit

109 F.2d 512 (1940)

UNITED STATES v. REBHUHN et al.

No. 210.

Circuit Court of Appeals, Second Circuit.

February 13, 1940.

Frank Aranow, of New York City (Arthur Garfield Hays, Paul Blanshard, Martin A. Roeder, S. Richard Silbert, and Oscar Stabiner, all of New York City, of counsel), for appellants.

John T. Cahill, U. S. Atty. (Richard Delafield and Boris Kostelanetz, Asst. U. S. Attys., both of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The three defendants appeal from a judgment of conviction under § 334, Title 18, U.S.Code, 18 U.S.C.A. § 334, for sending obscene printed matter through the mails, and for a conspiracy to do so. The offending matter consisted of circulars which advertised books for sale, and both the books and the circulars were charged to have been obscene. The defendants raise a number of objections of which we will dispose in the order in which they appear in their brief. The first is that the statute is unconstitutional because it lays down no definite standard of criminal liability. The Supreme Court overruled this in Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606, and many indictments have since been found, and many persons tried and convicted. These very defendants challenged the indictment at bar in an action brought under § 380a of Title 28, U. S.Code, 28 U.S.C.A. § 380a, and were unsuccessful. If the question is to be reopened the Supreme Court must open it. Tyomies Publishing Company v. United States, 6 Cir., 211 F. 385.

The next question, and the only serious one in the case, is whether the books and circulars were obscene. This cannot be properly understood without some statement of the enterprise as a whole in which the defendants were engaged. One of them, Ben Rebhuhn, had done business under the name of "Falstaff Press" before any of the mailings here in question. Later the business was incorporated under the same name, and the corporation sent out many thousands of circulars at random; that is to say, the addressees were not selected with any eye to whether they might have a legitimate interest in the books advertised, and whether, on the contrary, it was not likely, or even reasonably certain, that those who bought would do so to gratify their lewdness. Of the fifteen counts in the indictment thirteen were for mailing circulars to individuals, and these made up a group of two girls of fifteen and nineteen, a woman of twenty-one, another who was a trained nurse, a fifth, employed by the Treasury Department, and a sixth who was a chiropractor; in addition there were two lawyers, an assistant United States attorney, a doctor, a business man, a boy at school, and, mirabile dictu, the financial agent of a society for the suppression of vice. The defendants assert that the circulars were not obscene, if taken alone, even if they described the books in such a way that the reader would suppose them to be sexually exciting; and we shall assume arguendo that they made a case only under that part of the section which forbids sending information of where obscene writings can be obtained. It was the books that offended, if offence there was.

These purported to be translations of works, written by authors who were either proved, or may be assumed, to have been men of scientific standing, as anthropologists, psychiatrists, and the like. Most of the books could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they were written, though that was not true of one or two; for example, of that entitled, "Sex Life in England", which was a collection of short and condensed erotic bits, culled from various sources, and plainly put together as pornography. The defendants employed one, Malkin, to make the translations, which he did under various names; and, although there was no evidence as to how complete or accurate his work was, we will assume that it was honest, and that the works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications, and that in the trial of an indictment the prosecution must prove that the accused has abused a conditional privilege, which the law gives him. United States v. Dennett, 2 Cir., 39 F.2d 564, 76 A. L.R. 1092; United States v. One Book Entitled, Ulysses by James Joyce, 2 Cir., 72 F.2d 705; United States v. Levine, 2 Cir., 83 F.2d 156. However, in the case at bar, the prosecution succeeded upon that issue, when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limits; the circulars were no more than appeals to the salaciously disposed, and no sensible jury could have failed to pierce the fragile screen, set up to cover that purpose.

Since we are assuming arguendo that most of the circulars were not, however, themselves obscene, the question arises whether it was error to couple them with the books in the indictment. The indictment was not duplicitous. (Burton v. United States, 8 Cir., 142 F. 57) nor was there a material variance. The only possible harm, even on the assumption we are making, was that the jury might have based guilt upon the circulars and not upon the books; and if the case was properly presented to them, that danger did not exist. It is true, however, that the judge did not distinguish between the two, and that in theory the jury might have based conviction on the circulars alone, though that chance was extremely remote, for the purport of the...