U.S. v. Womack, Nos. 71--1711

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before TAMM; MacKINNON; MacKINNON
• Citation: 166 U.S.App.D.C. 35,509 F.2d 368
• Parties: UNITED STATES of America v. Herman L. WOMACK, Appellant. UNITED STATES of America v. POTOMAC NEWS COMPANY, Appellant.
• Decision Date: 07 December 1972
• Docket Number: 71--1894,Nos. 71--1711

Page 368

509 F.2d 368 166 U.S.App.D.C. 35 UNITED STATES of America
v.
Herman L. WOMACK, Appellant.
UNITED STATES of America
v.
POTOMAC NEWS COMPANY, Appellant. Nos. 71--1711, 71--1894. United States Court of Appeals,
District of Columbia Circuit. Argued Sept. 21, 1972.
Decided Dec. 7, 1972. ^*
Supplemental Opinion Dec. 31, 1974.
Rehearing Denied Jan. 31, 1975.

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Mr. Stanley M. Dietz, Washington, D.C., for appellants.

Mr. Robert D. Zsalman, Asst. U.S. Atty., with whom Messrs. Harold H. Titus, Jr., U.S. Atty., John A. Terry and Donald E. Campbell, Asst. U.S. Attys., were on the brief, for appellee. Mr. Richard A. Hibey, Asst. U.S. Atty., at the time the record was filed, also entered an appearance for appellee. Mr. Thomas A. Flannery, U.S. Atty., at the time the record was filed, also entered an appearance for appellee in No. 71--1894.

Before TAMM, Circuit Judge, WADE H. McCREE, Jr., ^** Circuit Judge for the Sixth Circuit, and MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Appellants Womack and Potomac News, Co., Inc. were indicted on twenty counts of interstate transportation of

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obscene matter in violation of 18 U.S.C. § 1462 ¹ and three counts of mailing nonmailable matter and information stating how and where obscene materials were to be obtained, in violation of 18 U.S.C. § 1461. ² A jury trial resulted in a verdict of guilty on twelve counts under § 1462 and on all three counts under § 1461. ³ On this appeal three issues are raised: (1) the propriety of the exclusion by the trial court of a number of allegedly comparable magazines; (2) whether the eight magazines which formed the basis of appellants' convictions were obscene and not within the free speech guarantees of the First Amendment and (3) the validity of the search warrant under which the eight magazines were seized. In this opinion we consider only issues (1) and (3) and defer any opinion on (2) pending the decisions of the Supreme Court in Alexander v. Virginia, 212 Va. 554, 186 S.E.2d 43, cert. granted, 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 332 (1972) and companion cases, involving similar issues which were argued on October 16, 1972.

I. Comparison Evidence

Appellants were convicted on the basis of eight explicit 'magazines' ⁴ apparently

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directed at an audience of homosexuals and pedophiles. ⁵ The particular evidentiary issue on appeal involves appellants' attempts to introduce allegedly comparable materials ⁶ into evidence for various purposes. Appellants contend

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they were denied due process of law in the District Court's refusal to admit any of the proffered exhibits. There has been a considerable amount of confusion in the courts as to the admissibility and function of comparison evidence in obscenity cases. Some jurisdictions have held it reversible error to reject such evidence, while others exclude it rather summarily. ⁷ Some of this confusion, it seems, stems from an inability to distinguish the various purposes for which comparison evidence is sought to be introduced. In this case appellants urge three distinct purposes which we will consider separately.

A. Nonobscenity as a Matter of Law

Appellants contend that they should be allowed as a requirement of due process to present the proffered comparison exhibits to the jury as primary autoptical evidence in order that the jury may compare materials previously held nonobscene by other courts (including the United States Supreme Court) to the exhibits which are the subject of the instant prosecution. This is clearly incorrect and involves a basic misconception of the respective roles of judge and jury. In essence it demands that the jury perform the judge's task of determining whether this issue should be disposed of as a matter of law. That is, it requires the jury to interpret the effect of a previous holding of nonobscenity as it bears on the issues of the present case. Can it possibly be said that the jury is competent to interpret the stare decisis effect of various decisions, analyze the grounds of their holdings and distinguish them on their facts? ⁸ This is clearly beyond the province of the jury and is a basic function of the judge. When presented with a motion for a judgment of acquittal under Fed.R.Crim.P. 29, the judge properly should compare the evidence in the instant case with that held nonobscene by the controlling authority of that jurisdiction. If the matter held nonobscene by such courts, in his opinion, equals or exceeds ⁹ the evidence at issue, a judgment of acquittal should certainly be entered.

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A number of cases which uphold the refusal to admit comparison evidence have nevertheless approved its use in this manner by the judge. This was noted in this court's decision in Huffman v. United States,152 U.S.App.D.C. 238, 470 F.2d 386 (1971), petition for rehearing granted on other grounds Aug. 10, 1972:

We do not say that decisions involving other publications can play no part in the evaluation of a particular magazine or book. Certainly a judge passing on the legal 'obscenity' of material before him will consider whether it is so close to others already passed on by the courts as to require a judicial ruling on obscenity without submission to the jury.

152 U.S.App.D.C. at 255--256, 470 F.2d at 403--404 (emphasis added). ¹⁰ Similarly, in United States v. 392 Copies of Magazine 'Exclusive,' 253 F.Supp. 485 (D.Md.1966), aff'd 373 F.2d 633 (4th Cir. 1967), the court expressly left open the question of comparison evidence in a jury trial but concluded that such material from prior 'adjudicated cases, whether held obscene or not obscene, should always be considered by the Court as illuminating the opinions rendered in those cases, and the items offered have been so considered.' 253 F.Supp. at 495. The use of comparative material to determine obscenity as a matter of law also is appropriate at the appellate level. ¹¹

Therefore the trial court clearly was correct in retaining this comparative legal method solely as his function and refusing to lay it before the jury. Furthermore, on review of the relevant exhibits we hold that the proffered evidence held nonobscene by the Supreme Court is not sufficiently similar to the exhibits at issue at trial as to have required a judgment of acquittal to be entered as a matter of law nor to require our reversal on appeal. ¹²

B. Proving Contemporary Community Standards

Appellants also sought to introduce comparative evidence to aid the jury in determining the prevailing contemporary community standards. ¹³ The District

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Court excluded all of defendants' proffered exhibits, applying the doctrine enunciated by this court in Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, cert. denied, 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961). ¹⁴

In Womack, a broad range of comparison materials were proffered by the defendant in an effort to show a contemporary community standard of general acceptance of works like his own. The court rejected the comparison evidence as immaterial where the proper foundation had not been shown. Judge Prettyman described the necessary foundation as consisting of two elements: '. . . that the two types of matter are similar. And as another part of his foundation he must show a reasonable degree of community acceptance of works like his own.' 111 U.S.App.D.C. at 10, 294 F.2d at 206. Appellants contend that this should not be the rule in modern obscenity prosecutions since in the Womack case there was such a wide divergence between the proffered exhibits and the materials that were the subject of that prosecution. ¹⁵ While it is true that the comparison evidence offered in the instant case is not as vastly different from the materials at issue in the trial as in Womack, this fact in no way undermines the soundness of the Womack test. The foundational requirements established in that case are eminently logical prerequisites under traditional concepts of materiality and relevancy. ¹⁶ Moreover, the Womack test has recently been applied in this circuit in Huffman v. United States ¹⁷ and has been explicitly adopted by a number of other circuits as well as in some state jurisdictions. ¹⁸

We are fully cognizant of the notion that expert testimony on contemporary community standards is desirable and may even be a necessary requirement of due process. Most of the impetus behind the use of expert testimony in obscenity cases can be traced to the concurring opinions of Justices Harlan and Frankfurter in Smith v. California, 361 U.S. 147, 160, 169, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Those opinions indicated that due process may require some kind of expert testimony to enlighten the court on the community standards element of the Roth test. Justice Harlan's opinion alludes specifically to the use of comparison evidence. ¹⁹

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Many other decisions have echoed this position on the need for objective guidelines to help the court reach a rational decision under the admittedly imprecise Roth formula. ²⁰ Yet it is clear that the Womack test is perfectly compatible with the Smith policy and many cases adopting the Womack rule have excluded comparative evidence while simultaneously recognizing the validity of the Smith rationale. ²¹ In this case this inherent consistency is exceedingly apparent. There was in fact extensive expert testimony on both sides as to contemporary community standards. That is all that the Harlan and Frankfurter opinions can be read to have required. As the Sixth Circuit has stated in this regard:

(W)e are not unmindful of the relevant observations of Justices Frankfurter and Harlan in their concurring opinions in Smith v. People of State of California, 361 U.S. 147, 164, 165, 172, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). We do not content ourselves by saying that those concurrences did not necessarily express the majority view, but are agreed that what the District Judge did in this case (excluding comparison evidence...