United States v. Klaw

• Citation: 350 F.2d 155
• Decision Date: 15 July 1965
• Docket Number: Docket 28887.,No. 70,70
• Parties: UNITED STATES of America, Appellee, v. Irving KLAW and Jack Kramer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

350 F.2d 155 (1965)

UNITED STATES of America, Appellee, v. Irving KLAW and Jack Kramer, Defendants-Appellants.

No. 70, Docket 28887.

United States Court of Appeals Second Circuit.

Argued October 15, 1964.

Decided July 15, 1965.

Richard A. Givens, Asst. U. S. Atty., Southern Dist. of New York (Robert M Morgenthau, U. S. Atty., Andrew T. McEvoy, Jr., and John S. Martin, Jr., Asst. U. S. Attys., on the brief), for appellee.

Joseph E. Brill, New York City (Robert E. Goldman and Bernard J. Levy, New York City, on the brief), for appellants.

Before WATERMAN, MOORE and SMITH, Circuit Judges.

MOORE, Circuit Judge:

Irving Klaw and Jack Kramer were indicted on one count for conspiring to violate 18 U.S.C.A. § 1461 by knowingly using the mails for the carriage of "articles, matters, and things, which were non-mailable in that they were obscene, lewd, lascivious, indecent, filthy and vile." They were also charged with having knowingly used the mails to distribute "circulars, advertisements and notices which were non-mailable in that they gave information directly and indirectly, where, how, from whom and by what means certain obscene, lewd, lascivious, indecent, filthy and vile matters and things might be obtained." In addition, Klaw was indicted on forty-three counts for using the mails to transmit "certain articles, matters and things * * *, to wit, printed circulars, pamphlets, booklets, drawings, photographs and motion picture films, which were non-mailable in that they were obscene, lewd lascivious, indecent, filthy and vile." Nine of these counts were eventually dismissed, leaving thirty-four. Klaw was also indicted on forty-one counts for using the mails to carry certain "circulars, advertisements and notices, * * which were non-mailable in that they gave information directly and indirectly, where, how, from whom and by what means, certain obscene, lewd, lascivious, indecent, filthy and vile articles, matters and things might be obtained." Eleven of these counts were eventually dismissed, leaving thirty.

The conspiracy was said to have run from June 1, 1960, until the date of the indictment, June 27, 1963. The substantive counts were each based on individual mailings of materials over a period running from July 25, 1958, to May 6, 1963.

At a jury trial, the Government produced six witnesses whose receipt (or whose son's receipt) of circulars and materials had been the basis of thirteen of the thirty-four "obscene materials" counts and ten of the thirty "publicizing" counts. The lion's share of these mailings had been to one Duane Thoman of LaGrange, Kentucky, which name was one of the 300 or so aliases of Postal Inspector Harry Simon of Washington, D. C., who testified at the trial. Three of the Government's witnesses were parents who, while rummaging through Junior's bureau drawer, found that their respective adolescent offspring were exploring on their own a new world just coming into view. One Junior also testified but only as to his receipt of items from Nutrix.

Klaw is the owner of Nutrix Co., a New York based establishment that prints and publicizes materials — stories, photographs and drawings in the "bondage" genre. Much solicitation and distribution is carried on through the mails, particularly by way of mail order ads appearing in magazines likely to have a male clientele. These "bondage" booklets usually contain some twenty to twenty-five photographs or crude drawings of females — some scantily clad, some tightly trussed, and all voluptuous — subjecting other women and men to various tortures and indignities, including violent and forcible deformation of the body, while being gagged, fettered and bound in bizarre postures. The booklets bore such titles as "Sorority Girls Stringent Initiation," "Female Doctor Forced into Bondage," "Girls Concentration Camp Ordeals," "Dominating Woman Turns Man into Girl," "Men in the Ladies Room," and the like. A text in each booklet described in a puerile and asinine fashion the activity depicted in the drawings. One booklet entitled "The Devil of Yocherwalden" pictures female "Gazi" guards subjecting female prisoners to brutal tortures at the direction of the "Gazi" commandant "Elsi Achstunk." The captives and tormentors are drawn with exaggerated female physical characteristics, clothed in tight-fitting garments, wearing black leather shoes with very high heels, and posed in unreal positions. There were also photographs of "Fighting Girls," corset and high heel shoe scenes, and girls in rubber apparel. Photographs offered for sale were in many instances taken from motion pictures said to have been recently released, such as "Blood of the Vampire," "Slaves of Carthage," and "The Mystery of the Black Whip." Amateur "bondage" photographs were often solicited. Bulletins published by Nutrix advertised its publications in various bondage series. All these materials are described to us as being "sado-masochistic," and we are referred to Krafft-Ebing's Psychopathia Sexualis for further elucidation.

Nutrix is apparently a long-time disseminator of substantially the same type of bondage materials as those involved here. Surveillance by the Postal authorities (Inspector Simon) had commenced in 1951 and continued for four years, at which time no criminal reference was made. However, an administrative proceeding was then begun which culminated in the Postmaster-General's ordering that mail addressed to Klaw be marked "unlawful" and returned to the sender, pursuant to then 39 U.S.C.A. § 259a (now 39 U.S.C.A. § 4006). Klaw sought to enjoin the Postmaster from implementing that order, but was unsuccessful. See Klaw v. Schaffer, 151 F.Supp. 534 (S.D. N.Y.1957). This court affirmed per curiam the District Court's conclusion that the Postmaster General had acted within his statutory authority and that there was substantial evidence in that record to support the hearing examiner's finding that the material was obscene. 251 F.2d 615 (2d Cir. 1958). This court's judgment was vacated by the Supreme Court on other grounds and the complaint was dismissed. 357 U.S. 346, 78 S.Ct. 1369, 2 L.Ed.2d 1368 (1958). Thereupon Inspector Simon resumed his investigation. In 1960 he recommended prosecution, but no official action was taken until 1963. Kramer apparently began working for Nutrix in 1960 as manager of the New Jersey warehouse. In addition to these facts, the jury also had visual impressions from observation of the Nutrix materials introduced on trial.

Defendants were found guilty on each of the sixty-five counts that went to the jury. Klaw received concurrent sentences of two years' imprisonment on counts 1 to 5, with a $1,000 fine on each count; he received a suspended sentence on each of the remaining counts.¹ Kramer was fined $2,500 on count 1 and received a suspended sentence. Both Klaw and Kramer appeal, claiming that their motion for a directed verdict of acquittal was erroneously denied because there was insufficient evidence relating the Nutrix materials to "obscenity" or to "prurient interest."

In approaching this controversy arising out of another of our society's attempts at censorship, it is helpful to have in mind the scope of the problem and the variety of ways in which it arises. Cases in the Supreme Court over the past decade or so have come into being because state and city police officers, state attorneys general and federal district attorneys, state motion picture licensing bureaus, state youth morality commissions, federal Post Office Examiners and Inspectors, state and federal judges, and juries have considered a variety of movies, books and magazines to be "sacrilegious," "immoral," "obscene," or "objectionable." The specific items have run the gamut from motion pictures like "The Miracle," "La Ronde," "M," "Native Son," "The Game of Love," "Lady Chatterley's Lover," "Les Amants," and "A Stranger Knocks" to books like "Nights of Horror," "Peyton Place," "Pleasure Was My Business," and "Tropic of Cancer," to magazines like "One — The Homosexual Magazine," "MANual," "Trim," "Grecian Guild Pictorial," "Playboy," "Rogue," "Frolic," other "girlietype" magazines, and nudist magazines. Publishers, exhibitors, distributors and sellers of these materials have been subjected in state and federal courts and agencies to set-backs including stiff fines and jail sentences, seizure of the materials, injunctions against distribution, denial of licenses needed to exhibit a motion picture, and loss of the privilege to use the United States mails to distribute and publicize the materials.

The censors' successes have been short-lived, however, for in virtually every case decided by the Supreme Court, the disseminator has had a favorable result on one ground or another, save for three cases decided on one day in 1957.² Two are significant here — Roth v. United States and Alberts v. California, both reported at 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), which deal with the constitutional protection and definition of "obscenity," and which constitute the first and apparently only opinion subscribed to by a majority of the Court. In both cases convictions for violation of federal and state statutes pertaining to "obscenity" were upheld by divided Courts — 5 to 4 in Roth, and 6 to 3 in Alberts.

But if the censors won the battles of Roth and Alberts, the subsequent application of the principles of those cases suggests that as far as the war against pornography goes, the victory was only Pyrrhic. Since 1957 and Roth the "obscenity" situation has advanced rapidly. Then Lady Chatterley was still enjoying her clandestine sylvan trysts with her earthy gamekeeper; Fanny Hill's lively and apparently continuous actions were known only to the foreign traveling elite or to the reader of a smuggled copy; and "Tropic of Cancer" was still being seized by vigilant customs agents as contraband. Suddenly the entire picture changed. Whether encouraged by the courts, or whether...