481 F.2d 307 (9th Cir. 1973), 72-1892, United States v. Hamling

Docket Nº:72-1892 to 72-1897.
Citation:481 F.2d 307
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William L. HAMLING et al., Defendants-Appellants.
Case Date:June 07, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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481 F.2d 307 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

William L. HAMLING et al., Defendants-Appellants.

Nos. 72-1892 to 72-1897.

United States Court of Appeals, Ninth Circuit.

June 7, 1973

Rehearing Denied Aug. 23, 1973.

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[Copyrighted Material Omitted]

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Stanley Fleishman (argued), Sam Rosenwein, Hollywood, Cal., for defendants-appellants.

Larry E. Butcher, Atty. (argued), Harry D. Steward, U. S. Atty., John L. Murphy, Chief, Government Regulations Section, Criminal Div., Donald H. Feige, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before BARNES and JERTBERG, Circuit Judges, and EAST, [*] District Judge.

OPINION

EAST, District Judge:

STATEMENT OF THE CASE

On March 5, 1971, the Grand Jury for the Southern District of California indicted the above-named defendants, William L. Hamling (Hamling), Earl Kemp (Kemp), Shirley R. Wright (Wright), David L. Thomas (Thomas), Reed Enterprises, Inc. (Reed), Library Service, Inc., (Library), the appellants, and Greenleaf Classics, Inc. (Greenleaf), on 21 counts of alleged violation of Title 18 U.S.C. Sections 2, 371 and 1461.

Count 1 charged the defendants and various other unindicted co-conspirators with conspiring to cause to be delivered by mail obscene advertisements (Brochure), obscene books (Report) and advertisements giving information as to where, how and from whom and by what means the Report might be obtained. (Sections 2, 371 and 1461.)

Counts 2 through 14 charged the defendants with the knowing use of the mails for the carriage and delivery of the Brochure alleged to be a certain obscene, lewd, lascivious, indecent, filthy and vile advertisement to a named postal patron. (Sections 2 and 1461.)

Counts 15 through 18 charged the defendants with the knowing use of the mails for the carriage and delivery to a named postal patron of the Brochure giving information where, how, from whom and by what means the Report alleged to be an obscene, lewd, lascivious, indecent, filthy and vile book entitled "The Illustrated Presidential Report of the Commission on Obscenity and Pornography" might be obtained. (Sections 2 and 1461.)

Counts 19 through 21 charged the defendants with the mailing of the Report.

Pre-trial Motions:

The appellants and Greenleaf moved:

a) To dismiss the indictment because it failed to inform them of the nature and cause of the charges in violation of the Fifth and Sixth Amendments to the United States Constitution. This motion was denied.

b) For a Bill of Particulars. This motion was, except for a continuing order requiring the government to answer certain requests of the defendants and for discovery and inspection theretofore ordered, denied. The inspection ordered provided, inter alia, that "All available exhibits to be used in the prosecution of

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this matter will be pre-marked at pre-trial October 6, 1971, and made available to defendants for inspection. Failure to pre-mark available exhibits prior to the date of trial will result in their exclusion by the court at time of trial."

c) To dismiss the Indictment because no evidence was presented to the Grand Jury which would justify a finding, based on reason, that the publications named in the Indictment were obscene. The motion was denied and there followed a petition to this court for a Writ of Mandamus number 71-2550 which was denied. Whereupon the motion to dismiss was renewed because the government had improperly invited the Grand Jury to return the Indictment "by passion and prejudice" and in "total absence of evidence with regard to obscenity." In support of this motion, the defendants called the government's counsel as a witness to relate the evidence produced and procedure followed before the Grand Jury. The motion as renewed was denied.

d) To challenge the petit jury panel and to strike the venire because the jury plan systematically excluded all persons under 25 years of age. The Clerk of the court was called as a witness and testified that the master wheel from which appellants' trial jury would be drawn was filled in 1968 with the names of persons who were registered voters at that time, and that the procedures followed in selecting the names of the registered voters were in accordance with the District Court's plan.

The defendants produced evidence which they claim tended to establish that:

1. Young persons were a cognizable group and were more tolerant than older persons in matters pertaining to the depiction of sexually explicit material; and

2. The venire contained no persons with an age below 24 years.

The motion was denied.

e) For a month's continuance of the trial awaiting the drawing of a new venire. The motion was denied.

Trial:

The trial commenced on October 15, 1971, and the jury returned its verdict on December 23rd next. At close of the government's case in chief, the trial court dismissed Counts 6, 14, 18 and 20 for a failure of proof. The defendants moved for a judgment of acquittal on the remaining Counts and again at the close of all of the evidence, which motions were denied. After instructing the jury and while the jury remained in the box, the District Court invited counsel to approach the bench for the notation of objections to the instructions. The defendants requested the court to retire the jury and to hear further objections to the instructions. The trial court declined and heard counsel in close conference out of the hearing, but in the presence of the jury.

The jury found the defendant Greenleaf not guilty on the Counts submitted to them, and all of the appellants guilty on Counts 1 through 5 and 7 through 13 (the conspiracy count and the counts charging the obscenity of the Brochure and the mailing of the same.) The jury was deadlocked and unable to reach verdicts on Counts 15, 16, 17, 19 and 21 (the Counts alleging the obscenity of the Report and the mailing thereof). The appellants moved for an arrest of judgment, for a new trial and an acquittal, all of which were denied.

Sentences:

The individual appellants were sentenced to various concurrent and consecutive terms of custody and fines and terms of probation. The corporate appellants were sentenced to fines. The appellants appeal. The individual appellants are at liberty on bail. We affirm.

STATEMENT OF FACTS

We narrate the record evidence as follows: Some of the named postal patrons testified that they received through the

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mails the challenged Brochure advertising the Report and of their respective reactions upon receipt.

The mailings consisted of an outer envelope, bearing the postmark of North Hollywood, California, dated January 12, 1971, and inner return envelope addressed to Library, Post Office Box 20308, San Diego, California, and the Brochure itself, identifying Library as the mailing party. The outer envelope bore postage affixed by Pitney Bowes meter number 173583 (meter). The actual mailing of the material was made by an independent mailing and addressing service and was a part of a total of 55,000 mailings with affixed postage of the packets. The Brochures, mailing material and the meter had been supplied to the mailing service by a Bernard Lieberman of Regent House, Inc. (Regent), of North Hollywood, California, an unindicted alleged conspirator, which was billed $541.15 by the addressing service for the mailing services.

Regent was the lessee of the meter and had paid, through a Paul Wisner, $3,300 to the United States Postal Service for a setting of that amount of postage on the meter. Regent billed and Reed paid the mailing service charge and postage fees with its check signed by its officer, Hamling.

Kemp and Wright signed Postal Service documents for the rental of Post Office Box 20308 on behalf of Library.

A second Pitney Bowes postage meter was rented by Thomas and installed at Library for use in affixing postage to the mailing packets of the Report to those postal patrons responding to the advertising Brochure.

The individual appellants were responsible staff, policy decision making and operating members of the corporate appellants as distinguished from mere "figureheads" officers and directors of their respective corporations.

The Brochure and the Report, as respectively mailed, were each received in evidence.

The government called two experts for opinion testimony advisory to the jury, a Dr. Melvin Anchell, of Los Angeles, a practicing Medical Doctor and practicing Psychiatrist, who qualified as an expert on prurient appeal, and a Frank Getlein, a columnist with the Washington Evening Star in Washington, D. C., who qualified as an expert on contemporary community standards regarding the depiction of sexual activity, and on redeeming social value of written and pictorial communications. The opinions of these experts in their respective fields on the issue of obscenity vel non of the Brochure and the Report respectively was that the dominant theme of each was "pruriency," each was patently offensive to contemporary community standards, and was utterly without redeeming social value.

The appellants called five experts for opinion testimony advisory to the jury on the same issue of obscenity, a Dr. Otto N. Larsen, one of the Commissioners of the President's Obscenity Commission, who qualified as an expert and author on sociology subjects generally, including topics in mass communication, family sociology, public opinion, propaganda, public attitudes and like subjects, a Dr. W. Cody Wilson, the Executive Director and Director of Research of the President's Obscenity Commission, who qualified as an expert in the field of social...

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