United States v. West Coast News Company, 15792-15795.

• Decision Date: 22 March 1966
• Docket Number: No. 15792-15795.,15792-15795.
• Citation: 357 F.2d 855
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. WEST COAST NEWS COMPANY, Inc., a California Corporation, Wallace De-Ortega Maxey, and Sanford E. Aday, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

357 F.2d 855 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. WEST COAST NEWS COMPANY, Inc., a California Corporation, Wallace De-Ortega Maxey, and Sanford E. Aday, Defendants-Appellants.

Nos. 15792-15795.

United States Court of Appeals Sixth Circuit.

March 22, 1966.

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Stanley Fleishman, Hollywood, Cal., for appellants; Vander Veen, Freihofer & Cook, George R. Cook, Grand Rapids, Mich., on the brief.

Melvin L. Wulf, New York City, Legal Director, Rolland R. O'Hare, Detroit, Mich., Chairman, Erwin B. Ellmann, Detroit, Mich., Gen. Counsel, John A. Fillion, Detroit, Mich., of counsel, on brief as amici curiae for American Civil Liberties Union and American Civil Liberties Union of Michigan.

Marshall Tamor Golding, Atty., Dept. of Justice, Washington, D. C., for appellee, Herbert J. Miller, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Atty., Dept. of Justice, Washington, D. C., Robert G. Quinn, Jr., U. S. Atty., Grand Rapids, Mich., on the brief.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and CECIL, Senior Circuit Judge.

O'SULLIVAN, Circuit Judge.

This is an appeal from a judgment entered upon a jury verdict convicting defendants-appellants, West Coast News Company, a California Corporation, and Wallace DeOrtega Maxey and Sanford E. Aday, California residents, of violations of Sections 1461 and 1462, Title 18, U.S. C.A. The charged offenses arose from the delivery into Michigan by mail and common carrier of allegedly obscene books, including one entitled Sex Life of a Cop.¹ Trial was in the United States District Court for the Western District of Michigan. Substantial fines were imposed upon the corporate and individual defendants and the latter received severe prison sentences.

Our task is lightened by our view that the challenged book is by any standard obscene. It was inevitable that in today's bold and flourishing business of pornography there would come along a writing so bad that no amount of sophisticated dialectics could absolve it from classification as "hard core". Such is the book we deal with. Thus we are spared the burden of attempting our own contribution to the already abundant literature on what is and what is not obscene. Although it was the jury's function to make the final decision as to whether crimes were committed by the commerce in this book, we are put to an initial and independent judgment because of appellants' contention that, as a matter of law, the book is not obscene.

We are properly charged with such responsibility by Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), where the United States Supreme Court by footnote reference (p. 188, 84 S.Ct. p. 1678) finds relevant one author's observation that,

"This obligation — to reach an independent judgment * * * appears fully applicable to findings of obscenity by juries, trial courts, and administrative agencies. The Supreme Court is subject to that obligation, as is every court before which the constitutional issue is raised." (Emphasis supplied)

In making this judgment, we apply the test announced by Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957) and conclude that "to the average person, applying contemporary community standards, the dominant theme of the material the book Sex Life of a Cop taken as a whole appeals to prurient interest."

We will not attempt illumination by extensive recital of the book's contents. This short description will suffice. Sex Life of a Cop is a paperback with a cover picturing a woman (the wife of the Mayor of the town) trying unsuccessfully to hide her nakedness behind the grotesque, underwear-clad figure of the town's Chief of Police, both of them having been interrupted in their lovers' lane dalliance by two of the town's police officers. The latter pair are the heroes of the narrative. Their discovery of the Chief and his lady was not the product of zeal to enforce the law, but of their effort to beguile the monotony of their round of duty by such surprise intrusions.

Inside the covers are pages which the defendants' experts call "blurbs". These are short, but meaty, excerpts from other books available from the publishers, and give prurient promise of the books' contents. They demonstrate that the publisher, at least, suffered from no illusions as to the interests to which the book was directed. One of the blurbs, however, has an intellectual flavor. It identifies as an author, Wallace DeOrtega Maxey, Doctor of Divinity, whom we assume to be the defendant of the same name. "Dr. Maxey" is described as a minister who has cast off the shackles of prudery, (now an evangelist for freedom) whose "views are in sharp contrast with those of most other ministers, but so were the views of Columbus with those of the other navigators of his time. The new idea replaces the old; the world is not flat."

The 147 pages of the alleged novel are generously faithful to the promise of the blurbs. Without palliating interruption, the story moves quickly from one sexual enterprise to another. So numerous are these events that even the practiced skill of the author runs out of fresh imagery and dully repeats his supply of leering adjectives. The chief actors are a police sergeant and his fellow occupant of the appropriately named "prowl car". These officers, except for some needed rest from their amours, devote most of their on-duty and off-duty hours to successful sex encounters with whatever females come within their view. Their conquests range from a virgin to a "100 dollar" prostitute. The wives of the Chief of Police and the Mayor of the town, the new female police dispatcher, friendly waitresses, two nurses who promptly take off their clothes when the busy officers, otherwise unheralded, climb through their open window, a drunken "society" lady who is first rescued from a corner lamppost and then raped in the back seat of the prowl car, and a miscellany of other willing ladies, make up the cast. Every female identified in the story is easy prey for the officers. With their husbands away, some married ladies gain the officers' sexual services by false night calls to the police dispatcher complaining of a "prowler." Chivalrous response by the prowl car is rewarded by amorous receptions. Even the wife of his fellow officer is not overlooked by Sergeant Thorne. The drama concludes with a smashing denouement when the sergeant discovers, as an eyewitness, that his own beloved Alice has been enjoying his outranked, prowl-car-pal's offerings. The moral lesson of retribution, which defendants' experts claim gives this book a social value, subtly emerges in the cuckolded sergeant's plaintive soliloquy "What in the world have I ever done to deserve this?" Thus ends the play.

We cannot believe that the First Amendment's great guarantee of freedom of expression can be elasticized to embrace Sex Life of a Cop. We conclude this part of our opinion with imitation of the wise and timesaving succinctness employed by Mr. Justice Potter Stewart in Jacobellis. Avoiding agonizing dissertation on the subject of obscenity, he said "I know it when I see it, and the motion picture involved in this case is not that." May we then, exercising the common sense which we like to think is a mark of today's federal judges, say that we know hard core pornography when we see it, and Sex Life of a Cop is just that. This initial and required judgment on the matter will be our ruling that the United States Constitution was not offended by letting this case go to the jury.

We will discuss such of the other charged errors as we consider merit consideration. Many of these were discussed adequately and at length in opinions of the District Judge, published as United States v. West Coast News Company, 216 F.Supp. 911 (W.D.Mich.1963) and United States v. West Coast News Company, 228 F.Supp. 171 (W.D.Mich.1964). These opinions bring together various rulings made during the course of and after trial. In the main, they are dispositive of the questions before us.

1. Rulings on defendants' expert testimony.

At pretrial, the subject of expert witnesses was discussed. The District Judge announced that he would allow each side to use two. Appellants' counsel requested the use of four. The judge allowed him three. Defendants were to make the selection of which three of their four witnesses they would use. We think the limitation on the use of experts was within the trial judge's discretion. See Annot. 5 A.L.R.3d 238, 257 § 11. We do not consider that he abused it. See his discussion at 228 F.Supp. 182-191.

The District Judge refused to allow appellants' experts to give their opinion as to whether Sex Life of a Cop was obscene. Such was the ultimate issue for the jury's determination. We find no error in this regard. While we have not been cited to any decision squarely on this point, we consider our view supported by respectable authority. United States v. Levine, 83 F.2d 156, 157 (CA 2, 1936); Volanski v. United States, 246 F.2d 842, 844 (CA 6, 1957); Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, 206 (1961), cert. den. 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822; Kahm v. United States, 300 F.2d 78, 84 (CA 5, 1962) cert. den. 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18; Commonwealth v. Isenstadt, 318 Mass. 543, 62 N.E.2d 840 (1945). And see the District Judge's discussion at 228 F.Supp. 182-191.

Defendants' experts were allowed to express their opinions as to the literary value and social importance of Sex Life of a Cop, as well as their views as to its acceptability by "contemporary community standards." The experts were Robert J. Kirsch, literary editor of the Los Angeles Times and part time teacher of "creative writing" at the University of California, Edward L. Galligan, professor of English at Western Michigan University, and one Guy Endore, an author who has lectured at various universities.² Among other observations, the witness...