470 F.2d 386 (D.C. Cir. 1971), 23781, Huffman v. United States

Docket Nº:23781, 23782.
Citation:470 F.2d 386
Party Name:Vernon Walker HUFFMAN, Appellant, v. UNITED STATES, Appellee. Dennis Eugene PRYBA, Appellant, v. UNITED STATES, Appellee.
Case Date:October 07, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 386

470 F.2d 386 (D.C. Cir. 1971)

Vernon Walker HUFFMAN, Appellant,

v.

UNITED STATES, Appellee.

Dennis Eugene PRYBA, Appellant,

v.

UNITED STATES, Appellee.

Nos. 23781, 23782.

United States Court of Appeals, District of Columbia Circuit.

October 7, 1971

         Argued June 8, 1971.

         On Rehearing Aug. 10, 1972.

Page 387

[Copyrighted Material Omitted]

Page 388

[Copyrighted Material Omitted]

Page 389

          Mr. Stanley M. Dietz, Washington, D. C., for appellants.

         Mr. John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Gene S. Anderson, Asst. U. S. Attys. were on the brief, for appellee.

         Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

         LEVENTHAL, Circuit Judge:

         These are appeals from judgments 1 entered on convictions of several counts

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relating to violation of the indecent publications statute, 22 D.C.Code § 2001. 2 Appellants contend that an adversary hearing should have been held prior to the seizure of the alleged obscene materials, and that the issue of obscenity was tried on the basis of an erroneous legal standard. We have examined these and other contentions of appellants and find no reversible error.

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          A. Evidence At Trial

         The Village Book Store is an "adult book store" located at 819-13th Street, N.W., in the District of Columbia. The store is operated by a corporation. Appellant Pryba is president. Appellant Huffman was employed as a sales clerk in the store.

         On May 14, 1968, Walter G. Milam, an officer assigned to the Morals Division of the D. C. Metropolitan Police Department, purchased two magazines, "Modern Girls No. 14" and "Girl No. 5" at the bookstore. These items were in cellophane wrappers, and could not be examined on the inside before purchase. But when Officer Milam paid for them, Huffman assured him "those are real good ones that you are getting." After reviewing the two magazines and Officer Milam's affidavit, Judge Murphy of the then Court of General Sessions issued a warrant authorizing a search of the premises of the Village Book Store. 3 In executing the warrant the police seized 200 copies of various editions of "Girls" and "Modern Girls" plus 40 copies of a book, Female Auto-erotic Practices, and three rolls of 8 mm. film. The magazines and film were seized from a storeroom on the first floor, and most copies of the book were seized from the basement of the store. Appellant Huffman was present in the store and arrested when the warrant was executed.

         The nature of the magazines will be treated in detail subsequently. It suffices here, for purposes of identifying our problems, to quote the brief description of their contents that appears in the opinion of the District of Columbia Court of Appeals (see 259 A.2d at 343-44):

"Each of the so-called magazines in question consisted of a collection of photographs of two females engaged in undressing, caressing, fondling and embracing the other. In many of the photographs the subjects were nude or wearing only certain articles of clothing, such as stockings, which served to accentuate the nakedness of the body. The postures of the subjects in many of the pictures were such as to expose and bring into focus the entire pubic area. The foregoing is not intended to be a graphic and complete description of the photographs. Rarely will a verbal description of a photograph accurately depict it. In our opinion, anyone viewing the photographs

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would conclude that they were intended to and did portray homosexual activities between two females."

         At trial the Government introduced testimony of a psychiatrist, Dr. John Cavanaugh, and an art critic, Mr. Frank Getlein, to show that the seized items had a dominant theme that appealed to the prurient interest, and were without redeeming social value. Dr. Cavanaugh, whose qualifications included work with deviant sexual groups, testified that the primary appeal of the magazines "would be to the prurient interests of Lesbians, " but that they would also appeal "to the prurient interests of heterosexual males." Although the publications contained a statement, in three languages, that they were meant solely for "serious artists, " Mr. Getlein stated that in his opinion "a five-minute scrutiny of any one issue would disabuse anybody of that notion." He said that the magazines were "sloppily put together, " exhibited "no particular skill" in photographic technique, and for a number of reasons were virtually useless for the study of art. In addition, Mr. Getlein testified that the items exceeded the national community standards for the depiction of nudity in art.

         Appellants called Dr. Wilbur A. Hamman, a psychiatrist, to testify on their behalf. He stated that in his opinion the magazines would not "necessarily appeal to the prurient interests of any particular group of people." He disagreed with Dr. Cavanaugh's conclusion that the items would appeal to female homosexuals on the ground that women would not generally "get a kick out of looking at pictures." The Doctor also disagreed with Dr. Cavanaugh's opinion that the pictures would appeal to the prurient interests of heterosexual males, but stated that men might buy the magazines for vicarious sexual gratification.

         During the trial appellants attempted to challenge the assertion that the magazines were obscene by offering twenty-six other publications that had previously been declared non-obscene by the Supreme Court. The trial court refused to allow appellants to make this comparison to the jury but permitted appellants to ask Dr. Cavanaugh whether six of the exhibits appealed to prurient interests. Dr. Cavanaugh testified that individual magazines in this group would appeal to the prurient interests of various classes of persons, including male and female homosexuals, heterosexual males, and pedophiliacs. The trial court refused to permit appellant's psychiatric witness to testify as to whether these six exhibits exceeded contemporary national community standards, on the ground that this was not a medical fact.

         On the issue of scienter, appellants offered to prove that they had advice of counsel, prior to the time that they stocked the seized items, that these items were not obscene. It appears that the counsel involved was a lawyer for the importer, and this offer was linked with an offer that these magazines had been cleared for importation into the country. On objection by the prosecutor, the judge excluded this evidence as immaterial.

         The motion of Pryba for acquittal, on the ground that the Government had failed to prove he knew the items were stocked in the store, was denied.

         Over appellants' objections, the trial court sent the case to the jury. He gave instructions as to the elements of the offense, including a definition of obscenity. The jury found both appellants guilty (see note 1).

         B. Issue of Requirement of Adversary Hearing Prior to Seizure

         We first consider appellants' claim that the First Amendment requires an adversary hearing on the issue of obscenity prior to the issuance of any warrant authorizing seizure of allegedly obscene publications, and that failure to hold such a hearing in this case requires reversal of their convictions. Appellants rely on Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964).

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          In Quantity of Books, the Court held that a mere ex parte hearing, during which the judge scrutinized allegedly obscene publications, was an insufficient basis on which to issue a warrant for their seizure. The Court stated that "the procedures followed in issuing the warrant for the seizure of the books, and authorizing their impounding pending hearing, were constitutionally insufficient because they did not adequately safeguard against the suppression of non-obscene books." Id. at 208, 84 S.Ct. at 1724.

          While some opinions have cited Quantity of Books as teaching broadly

"that law enforcement officers cannot seize allegedly obscene publications without a prior adversary proceeding on the issue of obscenity", 4

         we agree with the conclusion in United States v. Wild: 5

"We do not believe Marcus and Quantity of Books can be read to proscribe the application of the ordinary methods of initiating criminal prosecution to obscenity cases * * * e. g., by seizing as incident to a lawful arrest evidentiary samples of allegedly obscene materials". 6

         We need not decide whether Wild was correct in upholding the warrantless seizure of publications pursuant to an arrest. It suffices that we agree with its reasoning that an ex parte, as opposed to adversary hearing, is a sufficient basis for an order authorizing (a) the seizure of a limited number of publications (b) for use as evidence in a criminal prosecution (as distinguished from an order entered in a civil action having the purpose of suppressing the books).

          Accepting this general position, which has been advanced to us by appellee, we fail to see how it justifies the omission of an adversary hearing in the instant case. It is true that the publications seized were later used as evidence in a criminal prosecution and were not destroyed through court order. Yet it can hardly be said that the number of items seized was limited to those required for the preparation of the Government's case. The record reveals that all of the copies of "Girls" and "Modern Girls"-about 200 magazines in all-were taken from appellant's...

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