United States v. Brown

• Decision Date: 09 June 1971
• Docket Number: Crim. A. No. 111-70-N.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Robert BROWN, a/k/a Bob Brown.

328 F. Supp. 196

UNITED STATES of America, v. Robert BROWN, a/k/a Bob Brown.

Crim. A. No. 111-70-N.

United States District Court, E. D. Virginia, Norfolk Division.

June 9, 1971.

John A. Field, III, Asst. U. S. Atty., Norfolk, Va., Larry E. Butcher, Donald H. Feige, Attys., Dept. of Justice, Washington, D. C., for plaintiff.

Stanley M. Dietz, Washington, D. C., James B. Power, Norfolk, Va., for defendant.

OPINION AND JUDGMENT ORDER

KELLAM, District Judge.

On July 14, 1970, the grand jury returned a one-count indictment charging Robert Brown with a violation of 18 U.S.C. § 1462. Specifically, the indictment alleges that Brown knowingly used the Railway Express Agency for transporting copies of two obscene books in interstate commerce from New York to Norfolk, Virginia. At his arraignment on October 26, 1970, Brown entered a plea of not guilty. On February 9, 1971, Brown waived a jury trial and moved to dismiss the indictment, claiming that 18 U.S.C. § 1462 is unconstitutional. By an Order dated February 17, 1971, this Court postponed determination of the constitutional question until after presentation of the evidence so that all the issues could be briefed and decided together. The case was tried before the Court on March 18, 1971; at the conclusion of the government's case-in-chief and after presentation of all the evidence, Brown moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29.

I

The two books named in the indictment, "My Last Time Never Again" and "Boys Who Seduce Other Boys," are essentially the same. Each consists of about a hundred pages of text and photographs. The text consists of several short "stories," seven in each book, explicitly describing various homosexual activities, including fellatio and sodomy, between men and boys. The photographs generally show one or two boys completely nude, with their genitals exposed. While the photographs do not illustrate the homosexual activity so graphically described in the text, many of them show the figures in close contact, occasionally with their genitals touching.

The evidence is not in conflict in any material way. The principally contested factual issue is whether the two books are actually obscene. The statute under which Brown was indicted, 18 U.S.C. § 1462, prohibits the use of any express company or other common carrier for carriage in interstate commerce of "any obscene, lewd, lascivious, or filthy book, pamphlet, picture * * * or other matter of indecent character."¹ To sustain a conviction under this section, there must be proof that Brown knowingly used some means of interstate commerce for the transportation and delivery of obscene materials.

a.

While the government has the burden of proving that Brown had knowledge of the character of these particular materials, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), Brown's belief that the books would or would not be characterized as obscene is immaterial. See Kahm v. United States, 300 F.2d 78 (5th Cir. 1962). Evidence of Brown's knowledge of the nature of these two books came from his business associate, Manny Balsky. Balsky manages Manny's Bargain Books, an "adult" book store in Norfolk, but Brown is president of the corporation through which they operate. Brown is also president of the Overstock Book Co. (Brown Book Co.) in New York. Overstock is in the business of publishing and wholesaling. According to an arrangement, Brown selects the books and other materials in New York and sends them to Balsky for resale in Norfolk.² Balsky stated that all of his "adult" books came from Overstock and that Brown selected the books to be shipped. Also, Balsky testified that the books he received from Brown were shipped by Railway Express. Brown was, and still is, engaged in the commercial exploitation of this kind of material. The conduct of Brown's business as revealed by Balsky's testimony and Overstock's invoice with its attached list of the materials sent sufficiently show that Brown knew exactly what these materials were. That he believed the books would be constitutionally protected, however, is no defense.

b.

Brown does not challenge the government's proof that he shipped the books in interstate commerce. Balsky testified that he dealt exclusively with Bob Brown of Overstock Book Co. and that when FBI Agent Flanders seized these two books, all the "adult" books in his store came from Brown in New York via Railway Express. The invoice shows that the books were shipped by Overstock Book Co. (Brown Book Co.) in New York for delivery to Manny's Bargain Books in Norfolk. The package slip attached to the invoice shows that the shipping carton contained nine copies of "My Last Time Never Again" and ten copies of "Boys Who Seduce Other Boys." Clearly, this element of the offense has been proved.

c.

The real issue in this case, of course, is whether these two books are actually obscene. The Supreme Court has held, more than once, that obscenity is outside the scope of First Amendment protection. E. g. United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (May 3, 1971). The Supreme Court set out the test for determining obscenity in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), but the test was modified in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, (Fanny Hill), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed. 2d 1 (1966). The Roth-Fanny Hill test contains three elements: (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (2) the material is patently offensive because it affronts contemporary community standards relating to the description and representation of sexual matters; and (3) the material is utterly without redeeming social value.

Brown argues that this Court must acquit him because the government presented no expert testimony that the two books are obscene. As authority for this position, Brown relies on United States v. Klaw, 350 F.2d 155 (2d Cir. 1965), which does indicate some of the problems involved in determining questions of prurient interest and contemporary community standards. Specifically, the problems include "how," "by whom," and "on what basis" these determinations are to be made. Klaw, however, is not controlling here, for as the Second Circuit Court of Appeals subsequently pointed out, the particular facts in Klaw required such testimony. United States v. Wild, 422 F.2d 34 (2d Cir. 1969). The two books named in this indictment appear to be substantially different from the materials discussed in Klaw. These books, while the photographs are somewhat less offensive than the color slides involved in Wild, give graphic textual descriptions of the same homosexual activities illustrated on the slides in Wild. Judge Lumbard stated in Wild, "The question of obscenity can be disposed of merely by stating that these slides are unquestionably hard core pornography. * * * There is no conceivable claim that these color slides have redeeming social value. * * * Hard core pornography such as this can and does speak for itself." 422 F.2d at 35-36. And in Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed. 2d 31, the Court said that in the cases in which it had "decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question." Clearly, these two books constitute hard core pornography and, therefore, are outside the limits of constitutional protection. In his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), Mr. Justice Stewart, speaking of hard core pornography, stated "I know it when I see it." Surely, these two books fall within that category. There is no need that experts be called to testify that these two books are obscene.

Despite the character of the text, Brown claims that these books do have some redeeming social value. To prove this assertion, Brown offered the testimony of Dr. Wilbur Hamman, a psychiatrist at St. Elizabeth's Hospital in Washington. Dr. Hamman stated his opinion that the two books would not appeal to the "prurient interest of the relatively normal American" although they might appeal to some homosexuals and pedophiles.³ When asked if there was "any theme" in either book, Dr. Hamman, referring to "My Last Time Never Again," stated that "the theme, in general, is that homosexuals are pretty messed up and sick people and you ought to stay away from them or you're going to get in trouble." Speaking of the other book, "Boys Who Seduce Other Boys," Dr. Hamman stated, "what it showed to me was a number of very messed up people getting involved with each other, but I don't think the theme came through as clearly as it did in the first book."⁴ The "theme" of which Dr. Hamman speaks is so disguised among the graphic descriptions of homosexual activities that if such a "theme" does indeed exist it is hardly discernable. The term "theme" is an over-statement at best, and the purported "message" certainly is not "dominant." The few sentences at the end of some of the stories, where one of the parties expresses remorse over his situation which resulted from involvement with homosexuals, do not add any redeeming social value as Brown claims.

Referring to the photographs in the two books, Dr. Hamman stated that they would appeal to some homosexuals and pedophiles, but not necessarily any more than a Sears & Roebuck catalogue. Likewise, Dr. Hamman indicated that these books were no more revolting than a television commercial showing a man brushing his teeth. The realm of psychiatry is indeed highly technical and beyond the understanding of laymen, but these conclusions seem absurd. It goes without saying that the difference between a Sears & Roebuck catalogue or a toothpaste advertisement and these two books is almost immeasurable. Unquestionably the descriptions in these books far...