Hunt v. Keriakos

• Decision Date: 19 June 1970
• Docket Number: No. 7557,7567.,7557
• Citation: 428 F.2d 606
• Parties: John L. HUNT, Petitioner, Appellant, v. John KERIAKOS, Acting Sheriff and Master of House of Correction at Billerica, Massachusetts, Respondent, Appellee. Joseph N. PALLADINO, Sr., Petitioner, Appellant, v. Joseph V. McBRINE, Commissioner of Penal Institutions for the City of Boston, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

428 F.2d 606 (1970)

John L. HUNT, Petitioner, Appellant, v. John KERIAKOS, Acting Sheriff and Master of House of Correction at Billerica, Massachusetts, Respondent, Appellee.

Joseph N. PALLADINO, Sr., Petitioner, Appellant, v. Joseph V. McBRINE, Commissioner of Penal Institutions for the City of Boston, Respondent, Appellee.

Nos. 7557, 7567.

United States Court of Appeals, First Circuit.

June 19, 1970.

Mitchell Benjoya, Boston, Mass., with whom Crane, Inker & Oteri, Joseph S. Oteri, and Kevin M. Keating, Boston, Mass., were on brief, for appellant John L. Hunt.

John A. Pino, Boston, Mass., with whom Herald Price Fahringer, Buffalo, N. Y., was on brief for appellant Joseph N. Palladino, Sr.

Lawrence P. Cohen, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Division, and Garrett H. Byrne, Dist. Atty., Suffolk County, were on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

These are two petitions for habeas corpus. Petitioners were convicted in the Massachusetts Superior Court of possession of obscene material with intent to sell, in violation of Mass.G.L. c. 272 § 28A. The convictions were affirmed sub nom. Commonwealth v. Johnson, 1969 Mass.A.S. 824, 247 N.E.2d 701, without opinion. Certiorari was denied sub nom. Johnson v. Massachusetts, (1969) 396 U.S. 990, 90 S.Ct. 478, 24 L. Ed.2d 452, following which petitioners commenced service of their sentences. Their present petitions were denied by the district court, in each instance with an opinion. Hunt v. Fitzpatrick (2/26/70) (not reported); Palladino v. McBrine, D.Mass., 1970, 310 F.Supp. 308. Certificates of probable cause for appeal were granted and we ordered petitioners admitted to bail.

The material offered for sale comprised, in the one case, "magazines" entitled "Wonder Girl," "Cover Girl" No. 8, and "Exciting" No. 15, and in the other, magazines entitled "Suzette," and "Cover Girl" No. 9. Some of these contain a small amount of written material of no particular consequence, or, we might think, interest, with the balance pictures. The others are solely pictorial. In all instances the pictures consist of photographs, many in full color, of young women either largely or totally undressed, exposing various portions of their bodies, but generally focussing on the vulva. In some instances stockings, garter belts, or other apparel are used to increase this emphasis, and in many instances positions, even to the point of contortion, are assumed so that no detail will be lost. There is no shading, blurring, or other photographic artistry to lessen the impact, and the usual "props," in addition to scanty wearing apparel, consist of pillows, divans, etc. All photographs are what are known as "singles," (showing only one person) and no activity is involved, although it could be said that some of the positions were inviting.

In the district court one of the petitioners introduced in evidence an allegedly similar magazine entitled "Exclusive," and called the court's attention to the fact that this magazine had been declared not obscene as matter of law by the Supreme Court in Central Magazine Sales, Ltd. v. United States, 1967, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49, reversing without opinion United States v. 392 Copies of Magazine Entitled "Exclusive." 4 Cir., 1967, 373 F.2d 633.¹ In all candor, once the point of full exposure of the perineal area has been reached, there is little basis to choose between one illustration and another. There is nothing exclusive about "Exclusive." Petitioners' magazines may be more striking in their impact, but it would be very difficult for us to say that if the one is not obscene, the others are. Indeed, to do so would render the question of obscenity vel non even more amorphous than any test previously suggested.

We are not, however, faced with even that doubtful question. In the recent case of Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (6/1/70), the Supreme Court summarily reversed, per curiam, the decision in Dykema v. Bloss, 1969, 17 Mich.App. 318, 169 N.W.2d 367, in reliance upon Redrup v. New York, 1967, 386 U.S. 767, 87 S. Ct. 1414, 18 L.Ed.2d 515. Mr. Justice Harlan, who had concurred in Central Magazine Sales, dissented. Whatever may be said for his often expressed view that the states are entitled to have a more rigid standard of obscenity than that decreed for the federal government, it has not been adopted by the Court. See also Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (6/15/70).

We have been supplied with copies of the magazines involved in Bloss to wit, "Pinned," "Gigi," "Missie," and various other numbers of "Cover Girl" and "Exciting." If the pictures in the case at bar could be regarded in any respect as more explicit than "Exclusive," there was no possible photographic deficiency, or restraint on the part of the models, in those accepted in Bloss. We do not believe the Court's action was based upon the publishers' announcement that their product was "artistic," "sociologically educating," and "essentially wholesome." We find such characterizations peculiarly inaccurate. Rather, we are...