United States v. Davis

• Decision Date: 06 December 1965
• Docket Number: No. 455,Docket 29518.,455
• Citation: 353 F.2d 614
• Parties: UNITED STATES of America, Appellee, v. Joe DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

353 F.2d 614 (1965)

UNITED STATES of America, Appellee, v. Joe DAVIS, Defendant-Appellant.

No. 455, Docket 29518.

United States Court of Appeals Second Circuit.

Argued April 28, 1965.

Decided December 6, 1965.

James M. Brachman, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, and Michael W. Mitchell, Asst. U. S. Atty., New York City, on the brief), for appellee.

Herbert A. Lyon, Kew Gardens, N. Y., on the brief for defendant-appellant.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

LUMBARD, Chief Judge.

This is an appeal from a conviction and sentence after a trial by a jury, in the Southern District of New York, for violation of 18 U.S.C. §§ 1461, 1463, sending obscene matter through the mails and mailing matter in indecent wrappers.

Counts one through five of the indictment charged that on various occasions Davis mailed packages whose wrappings bore an obscene label advertising defendant's "party records," in violation of § 1463. Counts twenty-two and twenty-three charged the mailing of two obscene phonograph records, in violation of § 1461, and counts six through twenty-one charged the mailing of advertising which described the means for procuring the obscene records of counts twenty-two and twenty-three, in violation of § 1461.¹ As it is not alleged that these advertisements are themselves obscene, there must be a finding that the phonograph records are obscene in order to find the advertisements violative of § 1461.

At trial, the parties stipulated the existence of each and every element of the crime charged, except that the phonograph records and labels were obscene. In oral argument before this court both sides declared they had agreed to submit the remaining issue to the jury without any testimony of any kind. The opportunity to require and present evidence about community standards of obscenity existed but was declined by that agreement. Compare United States v. Klaw, 350 F.2d 155 (2 Cir. 1965). The jury had before it only the labels, the advertisements, the phonograph records and record jackets.

The jury returned a verdict of guilty on all counts. Judge Kaufman, who presided at the trial, then made an independent examination of the evidence and determined that the finding of guilty by the jury did not invade Davis' First Amendment rights to freedom of the press and speech as the materials at issue were obscene and therefore not entitled to First Amendment protection. He imposed a fine of $1,000 on count one, and concurrent six-month suspended sentences on the remaining counts.

Davis does not allege as error any portion of Judge Kaufman's charge or the procedure employed by the district court. The sole issue before us is the same as was before Judge Kaufman, whether Davis is entitled to First Amendment protection because the labels and records are not obscene. We find that they are obscene under the tests established by the Supreme Court, and we affirm the judgment below.

To determine whether the matter before us is obscene, we must apply the now familiar test:

"Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (1964); Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed. 2d 1498 (1957).

Further, we are instructed to determine whether the material is patently offensive. Mutual Enterprises, Inc. v. Day, 370 U.S. 478, 486, 82 S.Ct. 1432, 8 L.Ed. 2d 639 (1962).

Applying these tests, we find that both the labels and the records are obscene. The records are without "literary or scientific or artistic or any other form of social importance." Jacobellis v. State of Ohio, supra, 378 U.S. at 191, 84 S.Ct. at 1680. Each record jacket and record "taken as a whole" makes abundantly clear the meaning and content of the recording. We also find that, despite the feeble attempt at double-entendre humor on the mailing label, the sole intended meaning of the label is obvious and far exceeds the permissible level of candor.

The appellant's other contentions do not merit discussion.

The judgment is affirmed.

WATERMAN, Circuit Judge (dissenting):

I dissent. I would reverse.

At trial, on November 18, 1964, the parties orally agreed that certain acts took place; the defendant conceded that the Government could call witnesses who would testify to these acts and thereby the commission of the offenses would be proven if the material mailed, exhibits in the case, were non-mailable. The exhibits were appellant's yellow gummed labels affixed to the outside of his packages, informing that he had "sexsational" party records available, his advertising circular, two phonograph records, and the respective jackets containing those records.

As stated in the majority opinion, the only contested issue was whether the phonograph records and labels were obscene so that the acts of the defendant in causing them to be sent through the mails violated 18 U.S.C. §§ 1461, 1463. And so, as stated in the opinion of the majority, the issue of defendant's guilt was submitted to the jury without the introduction into evidence of any oral testimony whatsoever. The phonograph records were played to the jury. After the exhibits were introduced into evidence and the records played to the jury, the Government rested, the defense put in no case whatever and moved to dismiss. The motion was denied, and the trial judge in his charge to the jury so adequately explained the nature of the case that no exception to the charge was taken by either party and no request for an additional or explanatory charge was made. The jury was out but thirty-five minutes and returned a guilty verdict. A motion by the defense to set the verdict aside and for an acquittal was denied, and the judge, believing that he, as well as the jury, was required to ascertain whether the exhibits were obscene, found that they were by any test that he had been able to observe.

The trial judge had in mind that this case involves "rights derived from the First Amendment guarantees of free expression" and believed that a judge at the trial level "cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected." Jacobellis v. State of Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679 (Brennan, J., opinion upon announcing the Court's judgment, in which Goldberg, J. concurred). If it were necessary for me also to accept this responsibility I would hold that the yellow mailing labels had no "literary or scientific or artistic or any other form of social importance" and that they exceeded the permissible level of candor which the First Amendment protects. On the other hand, they are so cheaply repulsive that it is incredible to me that the prurience of any person would be excited from reading them or from anticipation of receipt of the "sexsational" records. As to the records, I must say that they bored me, and testing subjectively "appealing to the prurient interest" neither of them did so appeal. Nevertheless, my personal reaction to these records, different from the reaction of the twelve jurors and the trial judge, is not the basis for my dissent. I would reverse on the ground that the verdict below was not supported by sufficient evidence.

The jury was charged that the issue for them to decide was whether the material would be deemed obscene by the average person, applying contemporary community standards, and the judge went on to charge that in "determining community standards you must try to use your experience in life, the observations you have made in your every-day affairs * * * so that you can make an objective determination based upon community standards of the nation of which you have been aware."

No evidence was introduced tending to show what these contemporary community standards of the nation were. The judge in his comments confirming the result the jury reached stated that his view was based on an attempt "to divine what I consider to be the mores of the country based on my years of experience and travel and observations and readings * * *"

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