United States v. Groner

• Decision Date: 28 March 1972
• Docket Number: No. 71-1091.,71-1091.
• Citation: 475 F.2d 550
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

475 F.2d 550 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.

No. 71-1091.

United States Court of Appeals, Fifth Circuit.

January 11, 1972.

Rehearing Granted March 28, 1972.

Mel S. Friedman, W. B. (Bennie) Housen, Jr., of Maley & Friedman, Will Gray, Houston, Tex., for defendant-appellant.

Eldon B. Mahon, U. S. Atty., Wm. F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., Frank D. McCown, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee; Henry E. Petersen, Asst. Atty. Gen., Larry E. Butcher, Atty. Dept. of Justice, Washington, D. C., of counsel.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Rehearing En Banc Granted March 28, 1972.

THORNBERRY, Circuit Judge:

This is an appeal from the conviction of William Groner on an indictment charging him with two counts of knowingly using a common carrier in interstate commerce to transport a quantity of obscene books, in violation of Title 18, U.S.C.A., Section 1462.¹

Groner alleges numerous errors in the district court's judgment. We find it necessary to discuss only two of these allegations and to render a decision on only one.

The government at trial introduced evidence that Groner caused the books in question to be shipped in interstate commerce from North Hollywood, California to Dallas, Texas. At the close of its case, the government presented four of the books—Oral Orgies, Eager Mouths, First in Line, and Blood Orgy—to the jury for their perusal. No expert testimony or other evidence was presented to show that the books were themed to appeal predominately to the prurient interests of its readers, went substantially beyond the community limits of candor in their description of sex and nudity, or were devoid of all redeeming social value. Although Groner presented testimony of experts in the fields of literature and psychology to the effect that none of these characteristics could be applied to the books, the jury nevertheless chose to convict him.

Groner contends that (1) the books are not obscene as a matter of law, and (2) the books themselves did not provide sufficient evidence of obscenity to sustain the jury verdict.

There remains little doubt that this Court is obligated to make an independent evaluation on the issue of whether the material in question is obscene.² The issue of obscenity involves the application of first amendment rights to the printed word. The courts, not the reasonable jury or even the majority of reasonable men, are responsible for the protection of freedom of speech. The substantial evidence test, usually employed to reinforce jury verdicts, thus cannot be utilized to apply these constitutional doctrines.

We have little trouble in finding the books involved in the instant case to be vile, filthy, disgusting, vulgar, and, on the whole, quite uninteresting. We do, however, have difficulty in equating these adjectives with the constitutional definition of obscenity.

Recent Supreme Court opinions furnish little guidance in this area. There exists between Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), a wide chasm of confusion, which is accentuated by frequent Supreme Court reversals in obscenity cases, citing only Redrup.³ Much of the material in these cases appears to be more disgusting than that involved in the instant case; some of the material found in the past to be obscene appears infinitely more tasteful, if such an adjective can be allowed in this area of the law.

There remains, however, this Court's determination of whether the particular material involved in the instant case is obscene and hence constitutionally unprotectible, as that term is interpreted by the Supreme Court. We are fully aware of the test enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957):

1. Whether the materials, taken as a whole, appeal primarily to the prurient interests of the average adult;

2. Whether the materials are patently offensive because they go substantially beyond the customary limits of candor in their description of sex and nudity; and

3. Whether the materials are utterly without redeeming social value.

In spite of indications to the contrary in Redrup,⁴ we believe this test was clearly sustained in the Supreme Court's most recent pronouncement in United States v. Reidel, supra, wherein the Court stated, "Roth has not been overruled. It remains the law in this Court and governs this case." 402 U.S. at 354, 91 S. Ct. at 1412.⁵

Knowing the legal test for obscenity and applying the same in light of recent Supreme Court decisions, however, are two entirely different matters. We are completely incapable of applying the test in the instant case. Without some guidance, from experts or otherwise, we find ourselves unable to apply the Roth standard with anything more definite or objective than our own personal standards of prudence and decency, standards which should not and cannot serve as a basis for either denying or granting first amendment protection to this or any other literature.

The necessity for expert testimony to establish the Roth elements was first explored in United States v. Klaw, 2d Cir. 1965, 350 F.2d 155. In Klaw, involving books and pictures much more graphically depraved than the books involved in the instant case,⁶ the government chose to rest its case largely on a showing of the material itself insofar as proof of their obscene nature was concerned. The Second Circuit, recognizing that the defendant out of apparent necessity had made no claim that the material in question had any redeeming social, artistic or literary value whatsoever, nevertheless held that the lack of expert testimony on the issues of prurient appeal and community standards was fatal to the prosecution. In so doing, the Court reasoned as follows:

In this case, however, the only predicate for any conclusion about prurient appeal was the material itself, as if res ipsa loquitur. The jurors were, therefore, left to speculate. They were invited to behold the accused material and, in effect, conclude simply that it is undesirable, it is distasteful, it is disgusting. Knowing perhaps that they would not be interested in obtaining more of the material they might wonder why anyone else would, and conclude that the only answer is "prurient appeal." Because the jury was given no basis for understanding exactly how and why the material appeals to its audience, whether deviate or average person, it may too readily supply an explanation—"prurient appeal." Even if the jury did not consist of twelve carefully selected Anthony Comstocks, it might well believe that the predominant appeal of certain acknowledged works of art, sculpture and literature found in all our well-known museums and libraries would be to the prurient interest of the average person, or perhaps someone else. But if that be so, can we allow the censor\'s stamp to be affixed on the basis of an uninformed jury\'s misconceptions?

350 F.2d at 167.

Even with adequate proof under the average man test, there might still be problems, for the jury was charged to consider the material from the standpoint of the average man in the nation as a whole. We very much doubt whether twelve random New Yorkers can make such a judgment without being further informed about the "common conscience of the nation," if there be such a thing.

350 F.2d at 168 n. 14.

Although there is much conflict on this issue,⁷ the Second Circuit's view has been followed by some courts. For example, in In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968), the California Supreme Court, finding expert testimony to be required on the issue of community standards, reasoned as follows:

Finally, even if the jury should be deemed to be a metaphysical embodiment of the "community," and therefore intrinsically cognizant of community standards, proof of community standards would nevertheless be indispensable to effective appellate review. An appellate court must reach an independent decision as to the obscenity of a material. . . . Since an appellate court certainly does not in any sense compose a cross-section of the community, it cannot effectively carry out this function in the absence of evidence in the record directed toward proof of the community standard.

* * * * * *

We cannot assume that jurors in themselves necessarily express or reflect community standards; we must achieve so far as possible the application of an objective, rather than a subjective, determination of community standards. An even-handed application of the criminal law, even with evidentiary guidance . . ., is sufficiently difficult in an area so confusing and intricate as obscenity. To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror. . . . "Community standards . . . can . . . hardly be established except through experts. . . . There is no external measuring rod for obscenity. Neither, on the other hand, is its ascertainment a merely subjective reflection of the taste or moral outlook of individual jurors or individual judges. . . . Their interpretation ought not to depend solely on the necessarily limited, hit-or-miss, subjective view of what they are believed to be by the individual juror or judge. It bears repetition that the determination of obscenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of `contemporary community standards.\'"

See also Luros v. United States, 8th Cir. 1968, 389 F.2d 200.

The government contends this position ignores this Circuit's holding in Kahm v. United States, 5th Cir. 1962, 300 F.2d 78. There the Court stated:

It is plain to us that when

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