United States v. Kaehler, Crim. No. 72-Cr-3014-W.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Citation: 353 F. Supp. 476
• Docket Number: Crim. No. 72-Cr-3014-W.
• Parties: UNITED STATES of America, Plaintiff, v. William Harvey KAEHLER, d/b/a Frank Williams, Defendant.
• Decision Date: 22 January 1973

353 F. Supp. 476

UNITED STATES of America, Plaintiff,
v.
William Harvey KAEHLER, d/b/a Frank Williams, Defendant.

Crim. No. 72-Cr-3014-W.

United States District Court, N. D. Iowa, W. D.

January 22, 1973.

353 F. Supp. 477

Evan L. Hultman, U. S. Atty., N. D. Iowa, Sioux City, Iowa, for plaintiff.

Frank J. Margolin, G. Daniel Gildemeister, Sioux City, Iowa, Bruce P. Wolfe, Los Angeles, Cal., for defendant.

ORDER

McMANUS, Chief Judge.

This matter is before the court on defendant's resisted motion for a judgment of acquittal filed December 4, 1972. On November 14, 1972 defendant was found guilty by a jury on the last 4 counts of a 5 count indictment for mailing obscene matter in violation of 18 U. S.C. § 1461.¹ Defendant's sole contention now is that in light of the expert testimony he must be acquitted.

The subject matter of the 4 guilty counts consisted of advertising flyers, pictures and films. Count II involved 16 black and white photographs and 1 movie film in black and white entitled "Black Rape"; Count III, 5 black and white photographs as a "special offering" advertisement for movie films; Count IV, 6 black and white photographs as an advertisement for 13 films; and Count V, 3 movie films in color entitled "Salt and Pepper," "Anal Lovers" and "The Go-Go Dancer."

The material photographically depicted many varieties of sexual activity both homo and hetero and between/among dual and multiple partners. Masturbation, fellatio, cunnilingus, oral, vaginal and anal intercourse are portrayed in toto, ad infinitum and ad nauseam. The camera angle, emphasis and zoom are directed toward a maximum exposure in detail of the genitalia during the sexual gymnastics of the models. One of defendant's ad flyers puffed the material: "Here is sic the `hardcore' film and photo sets which you have been looking for—ACTION!!! where everything is done and shown. . . ."

It does not appear settled whether "obscenity" at the trial level is a question of fact for the jury, a question of law for the trial judge or a mixed question for both. 50 Am.Jur.2d Lewdness, Indecency and Obscenity, § 40, p. 493; 5 ALR 3rd, Obscenity, § 15, p. 1190; See Spinar v. United States, 440 F.2d 1241 (8th Cir. 1971). However, it is the court's view that in a criminal case any legal doubt should be resolved in favor of the accused. Hence the court assumed that it, as well as the jury, must make its own determination of whether the material was obscene.

In making this determination, expert testimony may be helpful and some courts have seen fit to require expert testimony due to the complex nature of the question.² Here the government did present an expert whose testimony, however,

353 F. Supp. 478

added little support, if any, to its case. The defendant also presented expert testimony to the effect that the material did not appeal to the prurient interest, did not exceed the national community standard of candor, had the redeeming social values of entertainment, curiosity fulfillment, education and therapy for homosexuals and thus was not obscene. However, from the verdict it would appear that the jury elected to disregard the testimony of defendant's expert³ and now the question is whether the court can or should do likewise

United States v. Groner, supra, relied upon heavily by defendant, sets out the various courts which have struggled with the question of the necessity of expert testimony. In Groner the court concluded that without expert testimony on the complicated issues of "community standards" and "prurient interest," the jury and the court could do no more than speculate and thus a conviction could not be allowed to stand. However, Groner does not state that expert testimony is necessary in all cases and seems to exclude the necessity in those cases which could be classified as "hard-core pornography." The Second Circuit utilized a similar rationale in United States v. Wild, 422 F.2d 34 (2nd Cir. 1969), and the Ninth in United States v. Young, 465 F.2d 1096 (9th Cir. 1972).⁴ Some courts have even suggested that under the present state of the Supreme Court's pronouncements only "hard-core" material is proscribed as obscenity by the Roth test. 50 Am.Jur. supra § 5, p. 456 et seq.; Luros v. United States, 389 F. 2d 200, 205 (8th Cir. 1968).

A threshold problem with this approach, however, is how does one define "hard-core pornography"?⁵ While the Supreme Court has blessed America with its definition of "obscenity" in Roth, it has been unable to define "hard-core pornography" although some members have tried.⁶

Thus to resolve the matter at hand this court has been forced to enter the "obscenity thicket" or, perhaps, more aptly described as "obscenity morass." Examination of the legions of cases on all levels of state and federal courts that have tried to...