Kahm v. United States

• Decision Date: 23 April 1962
• Docket Number: No. 18855.,18855.
• Citation: 300 F.2d 78
• Parties: Harold S. KAHM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

300 F.2d 78 (1962)

Harold S. KAHM, Appellant, v. UNITED STATES of America, Appellee.

No. 18855.

United States Court of Appeals Fifth Circuit.

February 9, 1962.

Certiorari Denied April 23, 1962.

COPYRIGHT MATERIAL OMITTED

James Malcolm Williams, Minneapolis, Minn., for appellant.

John L. Briggs, Asst. U. S. Atty., Jacksonville, Fla., Daniel S. Pearson, Asst. U. S. Atty., Miami, Fla., Edward F. Boardman, U. S. Atty., Southern Dist. of Florida, Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and POPE^* and GEWIN, Circuit Judges.

Certiorari Denied April 23, 1962. See 82 S.Ct. 949.

POPE, Circuit Judge.

Appellant was convicted under an indictment returned in the court below charging him in ten counts with violation of § 1461 of Title 18 U.S.C. Eight of the ten counts charged the knowing use of the mails for the delivery of advertisements giving information as to where, how and from whom obscene, lewd and filthy writings and publications of an indecent character might be obtained. Two counts, (counts 8 and 9), charged him with knowingly causing to be deposited for mailing and delivery in the United States mails certain envelopes containing obscene, lewd and filthy pamphlets, writings and publications of an indecent character.

Appellant pleaded not guilty. Count 1 was dismissed; but after trial by jury, appellant was found guilty on all of the remaining nine counts. He was sentenced to imprisonment for a period of five years on each count, the sentences to run concurrently. The prison sentence was suspended and he was placed on probation.

Upon this appeal the principal contention made is that the evidence was insufficient to sustain the verdict. While appellant's specification lists certain asserted errors in the admission or exclusion of evidence, and in the instructions to the jury, appellant specially emphasizes his position that such listed errors are mentioned only as a basis for his claim that the judgment should be reversed and the cause dismissed; — that he does not seek and does not wish a new trial.¹

In the course of the Government's case, proof was made of the mailing of the various matters charged in counts 2 to 10 inclusive. In respect to counts 8 and 9, these were the alleged obscene writings; as to the other counts, the proof was of the advertisements which were alleged to have given information as to where, how and from whom the obscene, lewd and filthy pamphlets and publications might be obtained. There is no question as to the fact of mailing nor that the mailing was done by the appellant; and that he knew the contents and character of the transmitted material, for he admitted the mailing and knowledge of its contents. He himself selected it or wrote it and had it printed.

With respect to the advertisements referred to in seven of the nine counts on which appellant was convicted, appellant says that the Government failed to make a case in that it was not proven that the advertisements themselves were obscene; that it was not shown what, if anything, was sent in response to those advertisements, nor that obscene material was so sent.

As will be noted shortly, we find it unnecessary in this case to determine whether the Government's proof with respect to these seven counts was sufficient. If the case of United States v. Hornick, 3 Cir., 229 F.2d 120, was correctly decided, then most of appellant's contentions with respect to the failure to prove what was sent in response to these advertisements would appear to be without validity.² The record does not sustain appellant's assertion that there was no proof that obscene matters were offered in the advertisements or that such were sent, or intended to be sent, to those who answered.³

The evidence offered in support of counts 8 and 9, which we shall describe hereafter, discloses what appellant actually did mail; and it is shown to be the very material described in the portion of the advertisement just quoted.

We note, however, that appellant is not in a position to argue the insufficiency of the evidence as to the advertising counts, for, as will presently appear, we hold that the evidence on counts 8 and 9 was sufficient to sustain his conviction on those counts. Since the sentences upon all counts run concurrently with the sentences on counts 8 and 9, it is unnecessary for us to consider the contentions as to the insufficiency of the evidence on the advertising counts. Sinclair v. United States, 279 U.S. 263 at 299, 49 S.Ct. 268, 73 L.Ed. 692; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L. Ed. 1774; Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321; Pinkerton v. United States, 328 U. S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; Rogers v. United States, 5 Cir., 128 F.2d 973, 974; Morris v. United States, 5 Cir., 128 F.2d 912, 916.

An examination of the material mailed by appellant under the circumstances charged in counts 8 and 9 discloses that it was of such character as to permit the jury to find that substantially all of the material was plainly obscene within the definition of that term in Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498. As there stated: "Obscene material is material which deals with sex in a manner appealing to prurient interest." The Court adds in a footnote: "I. e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows: `* * * Itching; longing, uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * * *.' Pruriency is defined, in pertinent part, as follows: `* * * Quality of being prurient; lascivious desire or thought. * * *'"

The two batches of material mailed as charged in counts 8 and 9 were identical. Included under the heading of "Sack's Book Reviews" are a number of brief extracts purportedly taken and quoted from books by named authors. These are not book reviews in the ordinary sense but merely quotations of particularly salacious passages in the books. One is a passage purportedly lifted from the book "Peyton Place" by Grace Metalious. Here are the passages containing a vivid description of the accomplishment of sexual intercourse between a boy and a girl.⁴ We take it for granted that a motion picture which portrayed the consummation of a sexual act would be obscene. This mailed portion of an extract from Peyton Place is no less obscene in the sense of the definition of the Roth case.

The manner in which the appellant selected and published the extract just described and the other similar extracts to which we shall shortly allude, makes it plain that the Government here had no difficulty in meeting an additional standard for testing the type of obscenity which Congress may validly exclude from the mails. In Roth the Court rejected the earlier standard under which obscenity could be judged by the effect of an isolated excerpt taken from a book or other writing. The proper standard, the Court said, was used in the instructions given by the trial court in the Roth case. There the jury was told that "the test in each case is the effect of the book, picture or publication considered as a whole * * *." Had the appellant undertaken to send through the mail the book "Peyton Place" a different problem would be presented, for then inquiry would have to be made as to whether notwithstanding the fact that the book contained passages of the kind here referred to, "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest". No such question is presented to us here for the appellant in merely selecting the most obscene passages from various books has seen to it that his readers are not subjected to any book as a whole.⁵

The appellant cannot assert that such salacious extracts have "the slightest redeeming social importance." He was furnishing his readers only "smut for smut's sake"; and consideration of the other extracts and enclosures but serves to confirm that view and to demonstrate that the mailed material "taken as a whole" served no purpose whatever except to purvey obscenity.⁶

The extract from Peyton Place was accompanied by other so-called "book reviews" which were merely salacious extracts from other named books. One of these salacious extracts was taken from a book entitled "Out For Kicks". Our description of the obscene passages from Peyton Place fits this one precisely, as it does one from a book entitled "The Immortal" and still another from a purported "Nine Days to Mukalla."

Other material enclosed in the envelopes described in counts 8 and 9 may well be classified as hard-core pornography, a term we discuss hereafter. Among the so-called book reviews is a purported extract from a book entitled "The Tribe That Lost Its Head". This is a description of a savage tribal rite which the extract characterizes as loathsome and degraded.⁷ Another purported extract is from a book called "Intimacy"; it describes with unblushing detail both homosexual activity and masturbation. From "The Bitter Weed Path" and "Shadows of Shame" are taken descriptions of homosexual embraces. Enclosed in the same parcel of material is a discussion of "Sex Tortures", including, with numerous other descriptions of revolting procedures, an account of "punitive masturbation" and "gang rape". Also in the mailed material is a copy of what was referred to in the advertisement as "Formula 14". This is an extended description of how a man may go about meeting a woman, gradually awakening her interest, and finally seducing her.⁸

We need not speculate on whether since the Court held in Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, 689, 79 S.Ct. 1362, 1365, 3 L. Ed.2d 1512, that the Constitution "protects advocacy of the opinion that adultery may sometimes be proper", it also...