United States v. Luros

• Citation: 243 F. Supp. 160
• Decision Date: 29 June 1965
• Docket Number: Cr. No. 65-Cr-3007-W.
• Parties: UNITED STATES of America, Plaintiff, v. Milton LUROS et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

243 F. Supp. 160

UNITED STATES of America, Plaintiff, v. Milton LUROS et al., Defendants.

Cr. No. 65-Cr-3007-W.

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

June 29, 1965.

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Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, for plaintiff.

Stanley Fleishman, Hollywood, Cal., Percy Foreman, Houston, Tex., for defendants.

HANSON, District Judge.

On March 24, 1965, a grand jury for this District returned an indictment in twenty-five counts against the defendants. Count 1 charges a violation of Section 371, Title 18, United States Code, in that all of the defendants conspired together to violate the federal obscenity statutes. Counts 2 through 8, 10 through 12, and 19 through 25 charge that certain defendants used the mails for the carriage and delivery of obscene books and magazines in violation of Section 1461 of Title 18. Additional violations of Section 1461 are charged in Counts 9 and 15 in that certain defendants used the mails for the carriage and delivery of advertisements giving information where, how, from whom, and by what means obscene books and magazines might be obtained. Counts 13, 14, and 16 through 18 charge that certain defendants used a common carrier for carriage of obscene magazines in interstate commerce in violation of Section 1462 of Title 18. Each substantive count alleges that the obscene matter was mailed or shipped from North Hollywood, California, to a point in this District.

I.

The defendants have filed a motion to dismiss the indictment in which they allege numerous grounds for dismissal of the indictment and the individual counts thereof. They strongly urge that the Court rule at this time on the obscenity of the books and magazines named in the indictment. The Court has received from defendants' counsel several books and magazines. The defendants state that these are the books and magazines that are alleged to be obscene and that they are the basis for the indictment. The Court observes that the titles on the books and magazines received correspond to the titles stated in the indictment. However, the Court expresses no opinion as to whether this is the allegedly obscene matter or whether it is in fact obscene and outside the protection of the First Amendment. Although the greater part of the defendants' brief is devoted to an argument of their view of the constitutional standards for determining the issue of obscenity, that issue is not before the Court on this motion.

A motion to dismiss the indictment is not a device for a summary trial of the evidence. The sole function of this motion is to test the sufficiency of the indictment to charge an offense. United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). The sufficiency of the indictment must be determined from the words of the indictment, and the Court is not free to consider evidence not appearing on the face of the indictment. In ruling on this motion, all well-pleaded facts are taken to be true. United States v. South Florida Asphalt Co., 329 F.2d 860 (5th Cir. 1964); Padilla v. United States, 278 F.2d 188 (5th Cir. 1960).

The indictment in this case charges that the books and magazines are obscene. The defendants disagree. But on this motion to dismiss, that statement is taken to be true. The resolution of the dispute about the facts must await the trial. At this state of the case, no books or magazines have been admitted in evidence, and no evidence has been received on the other factors that must be considered in making a judgment on the issue of obscenity.

For support of their contention, the defendants rely on Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L. Ed.2d 793 (1964). In his opinion, Mr. Justice Brennan quotes from Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 116 (1960):

"`This obligation — to reach an independent judgment in applying constitutional standards and criteria to constitutional issues that may be cast by lower courts "in the form of determinations of fact" — appears fully applicable to findings of obscenity by juries, trial courts, and administrative agencies. The Supreme Court is subject to that obligation, as is every court before which the constitutional issue is raised.'" 378 U.S. at 188, 84 S.Ct. at 1678, note 3.

This quotation is part of an analysis of the role of the Supreme Court in obscenity cases. It had been suggested that the issue of obscenity should be treated as a factual judgment on which the jury's verdict is all but conclusive, or that the determination should be left to the lower courts with only limited review by the Supreme Court. The Court rejected this view as inconsistent with its duty to uphold constitutional guarantees. The appellate courts must make an independent judgment on the issue of obscenity. This court does not now decide the extent to which this court may have a similar duty when the issue is properly presented to it. However, that issue is not now before this court. Nothing in Jacobellis v. State of Ohio indicates an intent of the Supreme Court to overrule the established rule that well-pleaded facts must be taken as true on a motion to dismiss the indictment.

The question whether a particular book or magazine is within the protection of the First Amendment requires a delicate constitutional judgment. This is not a judgment that can be made at a high level of abstraction. An independent evaluation must be made of the facts of each case. Jacobellis v. State of Ohio, supra. The facts of an obscenity case cannot be adequately judged by a mere reading of the indictment supplemented by the defendants' informal offer of evidence.

If the Court were now to rule on the obscenity of these books and magazines and grant the defendants' motion to dismiss the indictment, an equally intolerable situation would result on appeal. A decision on the issue of obscenity involves considerations of fact as well as of law, but the appellate courts would be called upon to review that decision on a record devoid of evidence. In United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), the trial court did what the defendants would have this Court do in this case. It dismissed an indictment that was valid on its face because the court anticipated that the evidence would not prove the offense charged. On appeal, the Supreme Court remanded the case for trial, stating that an appeal at that preliminary stage was merely a request for an advisory opinion.

On this motion to dismiss the indictment, the Court assumes that the allegation of obscenity is true. If the evidence fails to prove the charge of obscenity or any other element of the offenses, the Court will rule on that issue when it arises.

II.

The defendants challenge the sufficiency of the indictment on the ground that it does not contain all the essential ingredients of an obscenity indictment. The indictment charges, in the statutory language, that the books and magazines are "obscene, lewd, lascivious, indecent, and filthy." The defendants contend that a valid obscenity indictment must charge: (1) that the particular book or other communication involved substantially exceeds customary limits of candor, in the nation as a whole, in the description or representation of matters pertaining to sex, nudity or excretion; (2) that the dominant theme of the material taken as a whole appeals to the prurient interest of the average person; (3) that the material involved is utterly without ideas, or literary, or scientific, artistic value, or any other form of social importance; (4) that the accused know that the particular book or other writing involved is obscene, that is, substantially exceeds contemporary community standards in the nation as a whole, appeals to prurient interest, and is utterly without social importance.

It is apparent that the defendants' first three "essential ingredients" merely represent the defendants' version of the legal definition of obscenity. But an indictment need not allege the definition of legal terms. A charge that books and magazines are obscene necessarily refers to and incorporates the legal definition of obscenity.

An indictment is sufficient if it (1) alleges all of the elements of the offense, (2) fairly informs the defendants of that which they must be prepared to meet in the preparation of their defense, and (3) enables them to plead an acquittal or a conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Stapleton v. United States, 260 F.2d 415, 17 Alaska 713 (5th Cir. 1958); United States v. Bagdasian, 291 F.2d 163 (4th Cir. 1961). This indictment satisfies each of these requirements.

An indictment that charges an offense in the words of the statute is sufficient if the words of the statute contain all the elements of the offense. Babb v. United States, 218 F.2d 538 (5th Cir. 1955); United States v. Palmiotti, 254 F.2d 491 (2d Cir. 1958); United States v. Foster, 253 F.2d 457 (7th Cir. 1958).

The exception to this rule is illustrated by the recent case of Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Spears v. State, 175 So.2d 158 (Supreme Ct. Miss.). In the Russell case, the indictment charged in the words of the statute that the defendants refused to answer questions that "were pertinent to the question then under inquiry" by a committee of Congress. The Supreme Court held the indictment to be insufficient because it did not state the subject which was under inquiry. The Supreme Court stated:

"The very core of criminality under 2 U.S.C. § 192, 2 U.S.C.A. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is

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