Burstein v. United States

• Decision Date: 30 January 1950
• Docket Number: No. 12173.,12173.
• Citation: 178 F.2d 665
• Parties: BURSTEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

178 F.2d 665 (1949)

BURSTEIN v. UNITED STATES.

No. 12173.

United States Court of Appeals Ninth Circuit.

December 28, 1949.

Rehearing Denied January 30, 1950.

Caspar Willard Weinberger, San Francisco, Calif., for appellant.

James M. Carter, U. S. Atty., Ernest A. Tolin, Chief Asst. U. S. Atty., Norman W. Neukom and Herschel E. Champlin, Assts. U. S. Atty., Los Angeles, Calif., for appellee.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

Burstein was found guilty of depositing for mailing an obscene, lewd, lascivious and filthy book entitled "Confessions of a Prostitute", and of depositing for mailing a mimeographed letter giving information as to where and how the book might be obtained, contrary to 18 U.S.C.A. § 334^* (old). On this appeal his principal contentions are: (1) that the book is not obscene as a matter of law; (2) that the court gave the jury an erroneous definition of obscenity; and (3) that the trial judge denied him effective representation by counsel.

The book in question had been copied by Burstein from a book published by The Macaulay Company entitled "Sterile Sun". It had been issued by that company in a special edition "the sale of which is limited to physicians, psychiatrists, sociologists, social workers, educators and other persons having a professional interest in the psychology of adolescents". It carried an introduction written by the Rev. John Howard Melish which emphasized the statement that the book was written for the professional group mentioned and that it should not be placed on the shelves of a public library for "young people with a pornographic urge to read". It was shown that the book "Sterile Sun" was found in the public library upon the restricted shelves. Appellant made copies of the book, omitting the statement of the publisher respecting limitation of sale, and the introductory note mentioned. He testified that he made the copies, giving it a new title, with the consent of the publisher. Appellant advertised the sale of the book under the new title by mailing circulars describing the book as "spicy", and "too sharp for ordinary consumption", and quoting a few especially salacious and suggestive lines from the book.¹ This he did under an alias.

We do not feel called upon to make any extended review of the book "Confessions of a Prostitute" for the purpose of explaining why in our opinion the court properly submitted to the jury the question whether the book was obscene within the meaning of the statute. Reading the book discloses that its generally suggestive and salacious character measured up to the advance promises contained in appellant's advertising circulars. We hold that this publication was such that it was for the jury to determine whether the book was obscene. Magon v. United States, 9 Cir., 248 F. 201, 203.

In charging the jury the court said: "Matter is obscene, lewd, or lascivious, within the meaning of the quoted statute, if it is offensive to the common sense of decency and modesty of the community, and tends to suggest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard. The true inquiry in this case is whether or not the publication charged to have been obscene was in fact of that character, and if it was, and the defendant knew its contents at the time he deposited it in the mail, it is not material that he, himself, did not regard it as obscene." The jury later requested additional instructions on the same point whereupon the court repeated the definition just quoted and added: "You are instructed that the words `obscene, lewd, or lascivious', as used in the statute from which I have just quoted to you, have the meaning of that which is offensive to chastity and modesty. They mean that form of indecency which is calculated to promote the general corruption of morals. The true test to determine whether a writing is non-mailable as obscene, lewd, or lascivious is whether its language has a tendency to deprave or corrupt the morals of those whose minds are open to such influences and into whose hands it may fall by allowing or implanting in such minds obscene, lewd, or lascivious thoughts or desires."

It is contended that the instructions thus given were erroneous. It is said that the language of these instructions is based upon the case of Regina v. Hicklin, L.R. 3 Q.B. 360, (1868), and that the rule of that case has been discredited by a line of decisions in the courts of appeals of the Second Circuit and the District of Columbia.²

The instruction given by the court follows the language which this court has previously used. Magon v. United States, supra, 248 F. at page 203, Duncan v. United States, 9 Cir., 48 F.2d 128, 132. The language of the instruction was substantially the same as that approved by the Supreme Court in Rosen v. United States, 161 U.S. 29, 43³, 16 S.Ct. 434, 439, 40 L.Ed. 606.

We find it unnecessary to consider or determine whether the decisions of the Second Circuit and the District of Columbia previously referred to establish any different or better rule than that which this court has previously announced, for an examination of the decisions referred to discloses that they dealt with facts not comparable to those involved in this case. In general they dealt with cases in which undue emphasis was placed upon the importance of isolated passages, or upon special classes of persons who might be more susceptible to influence by the publication than members of the public generally.

In this case the trial court did not fall into any of the errors commented upon in the cases to which reference has been made. It did not point to a particular class of persons especially susceptible to immoral influences; rather the instruction referred to the "common sense of decency and modesty of the community." (Emphasis supplied.) The instruction later given referred to "that form of indecency which is calculated to promote the general corruption of morals." (Emphasis supplied.) Nor did the instruction permit the jury to judge the book by detached portions, or otherwise than as a whole.

It is to be noted that Burstein himself endeavored to place his publication within that category referred to in Parmelee v. United States, 72 App.D.C. 203, 113 F.2d 729, 736, as a class of cases "in which publication and distribution were `wholly for the purpose of profitably pandering to the lewd and lascivious'". He could hardly say that he did not do his best to put out a book designed to appeal to the lewd and the lascivious.

Although no objections were stated or noted when the charge was given, we have considered carefully the contentions made by appellant. We are of the opinion that there was no error in the instructions.

Appellant contends that he was denied the assistance of counsel. The record shows that when Burstein was first called for arraignment and plea he expressly requested the court's permission to handle his own case and without an attorney to represent him. It was ascertained that he was without funds with which to employ an attorney; he was told that the court would appoint an attorney to represent him without cost to him, but he again stated that he did not want an attorney so appointed. Notwithstanding his protestation, the court appointed an attorney for him. Thereafter a continuance of the case was obtained so that the attorney might prepare to defend him. On April 28, 1948 Burstein pleaded not guilty to the charge and his case was set for trial on May 18, following. On April 30, the appointed attorney appeared with Burstein and requested permission to withdraw from the case. It was stated by the attorney then and later that Burstein and he could not agree on how the defense should be conducted. Later Burstein made a statement suggesting that the disagreement arose out of the opinion of the attorney that Burstein should plead guilty. The statement of the appointed attorney was to the effect that there was an irreconcilable difference between them as to "how the defense should be conducted", and that the attorney felt that it would be to the disadvantage of Burstein if the attorney sat at the counsel table appearing to represent him in the sight of the jury and really taking no part in the defense. Burstein continued to assert his desire to act for himself without counsel. He was told by the court "whatever you want to do, the court will abide by it". The judge called attention to the fact that if Burstein desired counsel the court "would offer him the opportunity of some other attorney to serve upon appointment of the court. But, as you say now, he feels he could best defend himself in the case, without an attorney, that is his right. You cannot force an attorney on a defendant if he does not want him."

At the trial Burstein conducted his own defense. The court had the right to assume that the defense was proceeding along the lines which had produced the difference of opinion between Burstein and the attorney who had been appointed to represent him. What Burstein then undertook to offer in his own defense were three matters: (1) the government's delay in bringing him to trial; (2) that an attorney by the name of Erwin had told him that his case would undoubtedly be dismissed upon preliminary hearing; and (3) the history of his prior convictions of offences under this and other criminal statutes, apparently for the purpose of disclosing a series of persecutions by public authorities.

Upon appeal to this court, Burstein, still representing himself, first filed a brief urging the delay in bringing him to trial as ground for reversal, and also his contention that he was denied representation by counsel. Thereupon we appointed counsel to represent him in this court, and new briefs were filed on his behalf, omitting mention of the asserted error through delay in...