Clicque v. U.S., 74-1322
| Decision Date | 13 June 1975 |
| Docket Number | No. 74-1322,74-1322 |
| Citation | 514 F.2d 923 |
| Parties | Forrest Wayne CLICQUE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James Chrisman Phillips, Austin, Tex. (Court-appointed), for petitioner-appellant.
William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.
The indictment in the present case tells all that needs to be known of the case's pre-trial posture. A Grand Jury in the Northern District of Texas charged:
On or about October 2, 1972, in the Dallas Division of the Northern District of Texas, FORREST W. CLICQUE, defendant, knowingly did use the mails for mailing, carriage in the mails and delivery of non-mailable matter, that is a certain envelope addressed to . . . and containing an obscene, lewd, lascivious, indecent, filthy and vile letter beginning 'Dear Johnny' and ending 'Mark A.', the said letter not being further described in this indictment as the same would defile the records of this Court.
A violation of Title 18, United States Code § 1461.
(emphasis added).
The defendant retained his own counsel and then entered a plea of guilty to the charge, on January 19, 1973. Before accepting the guilty plea the judge engaged the defendant in a colloquy which consisted, in relevant part, of this:
Mr. Clicque, before the Court asks you to enter your plea to this offense, I want to advise you that upon a finding of GUILTY after trial or upon a plea of GUILTY, the maximum penalty provided by law would be a fine not to exceed $5,000 or a term of imprisonment not to exceed five years or both the fine and the imprisonment. Do you understand that?
The letter was not reproduced in the indictment. There is no indication that the district court judge looked at it. The defendant was not questioned about its contents when he pleaded guilty. The judge accepted the plea on the basis of the indictment and conversation and then sentenced Clicque to five years in prison. Petitioner did not initiate any direct appeal from his conviction. But seven months after his sentence was imposed, in September 1973, Clicque initiated a collateral attack on his conviction under 28 U.S.C. § 2255. He contends both that his conviction violated his first amendment rights in that the judge did not make an independent assessment of the obscenity of the materials, and that the trial judge could not have had a factual basis for accepting his plea, and, therefore, the arraigning judge violated Rule 11 of the Federal Rules of Criminal Procedure 1. His petition was denied on the merits by the district court on January 3, 1974 and Clicque appealed to this Court in February of 1974. 2
We believe that Clicque's first amendment rights may have been infringed in that he may have been sent to jail for protected writings. We conclude that in this constitutionally sensitive area, the convicting court was under a constitutional duty to assure itself of the unprotected nature of Clicque's writing.
The question here is whether the First Amendment will allow the district court to accept a plea of guilty to a violation of 18 U.S.C. § 1461 3 without first ascertaining whether the writings are obscene. Courts are extremely cautious in applying a statute in an area fraught with constitutional considerations, to make sure that the application does not result in a denial of constitutional rights in the particular case. The application of this principle in the obscenity area is vividly illustrated by Justice Brennan's opinion in Jacobellis v. Ohio, 1964, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, in which he said:
Application of an obscenity law to suppress a motion picture thus requires ascertainment of the "dim and uncertain line" that often separates obscenity from constitutionally protected expression.
It has been suggested that this is a task in which our Court need not involve itself. We are told that the determination whether a particular motion picture, book, or other work of expression is obscene can be treated as a purely factual judgment on which a jury's verdict is all but conclusive, or that in any event the decision can be left essentially to state and lower federal courts, with this Court exercising only a limited review such as that needed to determine whether the ruling below is supported by "sufficient evidence." The suggestion is appealing, since it would lift from our shoulders a difficult, recurring, and unpleasant task. But we cannot accept it. Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees. Since it is only "obscenity" that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law.
Such an issue, we think, must ultimately be decided by this Court. Our duty admits of no "substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case."
. . . Hence we reaffirm the principle that, in "obscenity" cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.
378 U.S. at 187, 84 S.Ct. at 1677, 12 L.Ed.2d at 797-99 (citations and footnotes omitted). This Court has adopted Justice Brennan's view of the responsibility to make an independent assessment of the facts:
Furthermore, it is now settled that on review of First Amendment cases, the proper course for an appellate court to take is: to make "an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected."
United States v. Gates, 5 Cir. 1973, 481 F.2d 605 at 606, (quoting Jacobellis).
The Supreme Court has by no means carved an exception to the need for this independent judicial scrutiny merely because the defendant himself thought his material was racy. On the contrary, in United States v. Cote, 1973, 413 U.S. 915, 93 S.Ct. 3061, 37 L.Ed.2d 1037, the Court suggests that our interpretation is the correct one. Cote involved a case in which a defendant pleaded guilty to mailing obscene material, and then took a direct appeal. In the case's original appearance before this Court, 470 F.2d 755, Cote claimed that as a matter of law the material was not obscene. In a short affirmance, we said:
While represented by retained counsel unusually experienced in these matters, Cote pled guilty. Thus, he admitted each and every averment of the indictment. (citation omitted). We further note that at the time this plea was received, the careful trial judge pointed out that it was his opinion such a plea would finally and completely determine the issue of obscenity vel non of the material.
Thus the Court held adversely to the appellant on the contention that the appellate court must independently assess the obscenity of the material even when defendant pleads guilty.
The Supreme Court reversed our decision and remanded the case. The memorandum opinion merely says "Petition for writ of certiorari granted, judgment vacated and case remanded to the Court of Appeals for further consideration in light of Miller v. California, 1973, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (other citations omitted)."
The Court was thus ordering a reconsideration in light of the substantive standards it had recently enunciated. On remand, we adopted the interpretation that an obscenity conviction must be supported by an independent factual assessment according to the prevailing legal standards, even where a guilty plea has been entered. We said, at 485 F.2d 575:
Pursuant to the order of the Supreme Court . . . we have made an "independent constitutional judgment on the facts of the case as to whether the material is constitutionally protected." (citing Jacobellis) 4
The present case is before us on the basis of the constitutional requirements of court review of obscenity convictions and thus it stands in no different posture than did Cote.
The rule that a guilty plea does not excuse the court from reviewing the actual material on which the plea is based applies with equal force to the district court judge as it does to the appellate judge. The rule requires an "independent assessment" of the facts before a conviction may be upheld in order...
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