Rebhuhn v. Cahill

• Decision Date: 22 May 1939
• Citation: 31 F. Supp. 47
• Parties: REBHUHN et al. v. CAHILL, U. S. Atty.
• Court: U.S. District Court — Southern District of New York

31 F. Supp. 47

REBHUHN et al. v. CAHILL, U. S. Atty.

District Court, S. D. New York.

May 22, 1939.

S. John Block, of New York City, for plaintiffs.

John T. Cahill, U. S. Atty. for the Southern District of New York, of New York City (Richard Delafield and Boris Kostelanetz, Asst. U. S. Attys., both of New York City, of counsel), for defendant.

Before CLARK, Circuit Judge, and LEIBELL and CLANCY, District Judges.

PER CURIAM.

On November 26th, 1935, an indictment was filed naming Ben Rebhuhn, Anne Rebhuhn and Ben Raeburn as defendants, charging them in fourteen counts with a violation of 18 U.S.C. § 334, 18 U.S.C.A. § 334, in that they sent obscene matter through the mails, and in one count with conspiracy to violate the said statute. This indictment has been pending since that time. The defendants have not demurred to the indictment.

On May 17th, 1939, plaintiffs herein filed a summons and complaint in the District Court of the United States for the Southern District of New York naming John T. Cahill, United States Attorney, as defendant and praying for a permanent injunction enjoining the defendant and his associates from prosecuting the indictment on the ground that the statute under which the indictment was drawn is unconstitutional and on the further ground that the prosecution of such indictment would cause irreparable injury to these plaintiffs. An amended complaint pleading an additional paragraph (thirtieth) was filed May 19th, 1939.

On May 17th, 1939, plaintiffs obtained an order to show cause why a temporary restraining order should not be granted in this action. The order was returnable May 19th, 1939. The District Attorney has waived the five days' notice of the application for the temporary restraining order. At the request of the District Judge before whom the order to show cause was returnable, the Senior Circuit Judge of this Circuit has directed that a statutory court be held, pursuant to 28 U.S.C. § 380a, 28 U.S. C.A. § 380a, to pass upon the constitutionality of 18 U.S.C. § 334, 18 U.S.C.A. § 334, the issue raised in this action.

The prosecution of a criminal indictment will not be restrained by the courts unless very exceptional circumstances are presented. Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; Campbell v. Medalie, 2 Cir., 71 F.2d 671; Jacob Hoffman Brewing Co. v. McElligott, 2 Cir., 259 F. 525. In Campbell v. Medalie, supra, the Court said 71 F.2d 672:— "The general rule has often been stated that a court of equity is without jurisdiction to restrain criminal proceedings. The exception to this rule exists when the prevention of such a proceeding under an alleged unconstitutional enactment is essential to safeguard the rights of property or when the circumstances are exceptional and the danger of irreparable loss is both great and immediate. * * * Where the criminal statute involved operates to cripple a course of business by threatening a multiplicity of criminal prosecutions or by imposing repeated heavy fines or penalties or involves situations where the person seeking equity is not in a position to try the issue in a criminal prosecution, the court will entertain jurisdiction. Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 L.R.A.1916D, 545, Ann. Cas.1917B, 283; Ex parte Young, 209 U. S. 163, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R. A.,N.S., 932, 14 Ann.Cas. 764."

In the instant case, despite the allegations of paragraph thirtieth of the amended complaint, there are actually no facts presented to warrant an order restraining prosecution of the indictment. There is no evidence of possible multiplicity of suits. Only one indictment has been returned in three and one-half years and there is no indication of any further indictments. The first thirteen counts of the indictment charge these plaintiffs with having mailed "an obscene, lewd, lascivious, filthy and indecent circular, letter, advertisement and notice" describing "certain books of an obscene, lewd, lascivious, filthy and indecent character" and giving "information where, and how, and from whom and by what means" such books might be obtained. The fourteenth count relates to a similar advertisement in a magazine entitled "The Gentlewoman." The plaintiffs have conducted their business during the pendency of this prosecution without apparent injury or undue interference. No facts or specific instances have been shown which would indicate that plaintiffs have been threatened with further prosecution or that irreparable damage will result to these plaintiffs from the prosecution of the indictment pending against them. General allegations on information and belief will not do. The constitutionality of the statute may be questioned at the trial of the pending indictment; plaintiffs have an adequate remedy at law.

On the question of the constitutionality of 18 U.S.C. § 334, it is urged that the statute does not contain a standard by which the crime can be ascertained. The same objection was made in the case of Tyomies Pub. Co. v. United States, 6 Cir., 211 F. 385. The Court rejected the argument saying (211 F. at page 388):

"With the addition of certain elements which do not vary the test to be applied, section 211 of the Penal Code is essentially the same as section 3893 of the Revised Statutes of the United States (U.S.Comp. St.1901, p. 2658 18 U.S.C.A. § 334), concerning which Mr. Justice Harlan, in the case of Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606, said:

"`The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was of that character, and was deposited in the mail by one who knew or had notice at the time of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining whether the statute has been violated. Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity, in social life, and what must be deemed obscene, lewd, and lascivious.'

"The specific argument that the...