United States v. Kaehler

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

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.

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, 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 apply the Roth tripartite test for obscenity leads this tribunal to one conclusion: the Roth test, as well as any suggested tests for hard-core pornography, are hopelessly confusing, vague, mind-miring, and solely subjective standards devoid of predictability.⁷ Judicial taste appears to be the real criterion. "If it turns me on, it's smut"!⁸ It is inconceivable to this court that such encroachment on sacred 1st amendment rights could so long withstand the challenge of equal protection.

However, regardless of this court's opinion of the Roth test, as a lower federal court it is bound by stare decisis.⁹ While this judge does not comprehend the Roth test, it does appear that at last count a transient majority of the Supreme Court thinks it does. Therefore, this court is driven to the conclusion that if the material involved in the 4 counts herein is neither "obscene" nor "hard-core pornography" as defined by Roth, et al., then nothing is, experts to the contrary notwithstanding.

It is therefore

Ordered

Denied.

1 Section 1461 provides in part:

"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance; . . . .

. . . . .

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier."

The word "obscene" has been restricted to sexual matters only, according to some authorities. 5 A.L.R.3rd, Obscenity § 5 p. 1175; See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

2 5 A.L.R.3rd 1194 § 16(a)-(b); United States v. Groner, (5th Cir. 1972, rehearing en banc decision pending); United States v. Klaw, 350 F.2d 155 (2nd Cir. 1965); In Re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968).

3 The court instructed the jury to give the testimony of experts "such weight as you think it deserves; and you may reject it entirely if you conclude that the reasons given in support of the opinion are unsound."

4 In an early case in the post Roth evolution of obscenity law, Alexander v. United States, 271 F.2d 140 (8th Cir. 1959), expert testimony was presented only by the defendant. The court in upholding the conviction stated that "the issue here involved is not so complex that it can be said that the average juror is not capable of applying the obscenity test to the books in controversy."

5 Warren, C. J. recognized the problem in his dissent in Jacobellis v. Ohio, 378 U.S. 184, 201, 84 S.Ct. 1676, 1685, 12 L.Ed.2d 793 (1963):

"We are told that only `hard core pornography' should be denied the protection of the First Amendment. But who can define `hard core pornography' with any greater clarity than `obscenity'? And even if we were to retreat to that position, we would soon be faced with the need to define that term just as we now are faced with the need to define `obscenity.'"

6 Harlan, J. in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1965):

"To be sure, that rubric `hard-core pornography' is not a self-executing standard, but it does describe something that most judges and others will `know . . . when they see it' (Stewart, J., in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793) and that...