United States v. Palladino, No. 72-1005.

• Decision Date: 22 February 1973
• Docket Number: No. 72-1005.
• Parties: UNITED STATES of America, Appellee, v. Joseph N. PALLADINO, Joseph N. Palladino, Jr., Appellants.
• Court: U.S. Court of Appeals — First Circuit

475 F.2d 65 (1973)

UNITED STATES of America, Appellee, v. Joseph N. PALLADINO, Joseph N. Palladino, Jr., Appellants.

No. 72-1005.

United States Court of Appeals, First Circuit.

Argued December 4, 1972.

Decided February 22, 1973.

Judgment Vacated June 25, 1973.

COPYRIGHT MATERIAL OMITTED

Herald Price Fahringer, Jr., Buffalo, N. Y., with whom John A. Pino, Boston, Mass., was on brief, for appellants.

Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

Judgment Vacated June 25, 1973. See 93 S.Ct. 3066.

COFFIN, Chief Judge.

Defendants, father and son, were convicted jointly by a jury on three counts of a nine-count indictment charging the mailing of obscene matter in violation of 18 U.S.C. § 1461, and were sentenced respectively for four and two years. The critical questions on appeal are whether the materials found obscene are constitutionally protected as a matter of law; whether proof of pandering was admissible, "the crime of pandering" not having been charged; and whether the government was obliged to proffer expert testimony on the three components of obscenity—dominant prurient appeal, patent offensiveness exceeding community standards, and utter lack of redeeming social value. Several other issues of lesser import will be discussed briefly.

The evidence for the prosecution consisted of the materials charged as being obscene, some additional materials evidencing the manner of distribution, testimony by four recipients, including one government agent who ordered books under a false name, and evidence that defendants, through their company, Granite Mail Order House, Inc., had engaged in large-scale mailing operations. The defense evidence consisted of comparative materials which had been found nonobscene by various courts as well as a recent issue of Playboy magazine designed to demonstrate contemporary community standards. The district court directed verdicts of acquittal on three counts which were largely duplicative of others. The jury acquitted on one count charging the mailing of a deck of playing cards illustrating various positions of sexual intercourse and on two counts charging the mailing of advertising circulars.

The Materials

The materials found to be obscene were five books and a mailing consisting of three brochures.¹ The latter and two other sets of mailed brochures found not obscene evidenced the tenor of the marketing of the books. Each book will be briefly discussed, together with reference to it in the brochures. The three brochures in the mailing found obscene will be described separately.

"A Report on Denmark's Legalized Pornography" is a 560 page, hard cover volume. The first 494 pages consist of 264 pages of interviews on the subject of Denmark's recent scatological equinox; two Gallup polls on the legalization of pornographic books and pictures; two articles in the Danish Review concerning Danish attitudes toward pornography; and a 180 page "Pornography Report of the Penal Code Council". The last 65 pages of the book consist of a collection of advertisements of pornographic materials. The first half of this section is devoted to many small black-and-white advertisements. The second half consists largely of full-page magazine advertisements in color portraying, inter alia, actual sexual intercourse, acts of fellatio, lesbianism, cunnilingus, and group sexual activity by three and four persons. A brochure advertised this book with the lead-off text: "New in America—SEE FOR THE FIRST TIME—THE NO HOLDS BARRED ILLUSTRATIONS from Scandinavian magazines and SEX PERIODICALS—MANY IN FULL COLOR . . . . ORGIES—EVERY SEX NOVELTY about which you have heard whispers . . . ." At the bottom of the advertisement there is reference to "the most important social revolution of our time" and the interviews, articles, and penal code report.

"Scandinavian Pornography" is also a lengthy hard cover book of some four hundred pages. After 110 pages devoted to a history of "The Fanny Hill Case", a subsequent potpourri includes brief sections of "Inside a Porno Shop", "Copenhagen Sex Fair", some thirty pages of Danish and Swedish magazine illustrations, 140 pages of interviews, "Swedish Porno Cartoons", comments by a Danish Supreme Court Justice on proposals to reform the Danish Penal Code concerning pornography, and a Ministry of Justice Report, sixteen pages of covers of magazines which had been banned, and a final thirty-one page section of black and white pictures from a Danish magazine. The photographs, while less explicit than those in the Danish "Report", display genitalia and simulated intercourse, with a sprinkling of sadomasochism, lesbianism, and bestiality. The cartoons run a similar gamut with flagellation added. The blurb in the brochure, after headlining "CANDID ILLUSTRATIONS, NEVER SEEN IN THE U.S.A. BEFORE", and mentioning a report "under the new freedom", reads: "Fantastically detailed sex cartoons sic strips, illustrating sado-masochism, lesbianism, shocking eroticism . . . . Drawing depicting a variety of sexual deviations, and strange sex acts . . . Every Sex Act—natural and perverse . . . ."

"Anal and Oral Love" is a two volume, paperback work, running to some 380 pages of text and over 120 illustrations devoted to a historical account of various love practices connoted by its title. The chapters treat in a literate, although undocumented, fashion with sex practices from early man, through the major ancient civilizations, up to Victorian times. The last chapter, an effort to carry the story into the current era, is set in larger type, makes little pretense at scholarship, and consists mainly of supposed case histories of present-day male homosexuals. The illustrations are all drawn from sculpture or graphic art, from ancient to contemporary, and depict a wide variety of anal and oral sexual activity. A sizeable selected bibliography is contained in each volume. "Anal and Oral Love" is advertised in a brochure announcing "Here are the hard ones setting the new pace! They're heavyweight and hard-crusted books that are boldly unique". The blurb describes the work as a "2 volume picture book", and then describes it as "The `definitive' sexual survey of man's most off-beat sex acts" which "spells out what The Kinsey Report only hinted about!" The advertisement also contains two explicit drawings of fellatio and sodomy.

The fourth work, a paperback book entitled "Animals as Sex Partners" contains 191 pages of text on supposed contemporary case histories narrating experiences in bestiality, with less than a dozen illustrations from artistic works. This is heralded in a full page advertisement as a "Sex Slammer", "an erotic shocker making others tame and childish by comparison!" A lengthy extract of one encounter is reproduced, together with two illustrations.

The brochures advertising these books were enclosed in envelopes to the addressee with no external identification save the name and address of defendants' company. They contained a note to "purchaser" that the material described was not obscene, that minors should not order the material, and that one could have his or her name removed from the mailing list by sending back the mailing.

The mailing charged in Count IX, which was found to be obscene consisted of three brochures. One advertised "The Photographic Deck of Sexual Love", with a number of photographs depicting a man and a woman in various sex positions; the full deck itself was found nonobscene by the jury in acquitting on a different count. A second advertised "My-O-My" magazine on one side, wherein three groups of nude males were photographically portrayed, and covers of six other magazines on the reverse side showing mostly couples in various amorous poses. The most flamboyant brochure advertised on one side "For the Super-Sensual", the book "Sex Tools for Erotic Pleasure", with a photograph, a listing of various sex gadgets under the blurb, "A New High in Orgasms", and some textual descriptions. On the reversed side are advertised, as "a masterpiece of sensuality" "The Come Freak", the revelations of an insatiable woman, with textual examples; and "The Middle-Aged Pervert", characterized as "A Raging Inferno of Sexual Demands!", again accompanied by textual extracts. Also listed are brief descriptions of eight other books including "Inside the Sex Deviate", "Anatomy of Nine Perverts", "The Sexmasters Guidebook", and "The Orgasm Masters".

Protection as a Matter of Law

Our first task is to address the issue whether, as a matter of law, any of these materials are non-obscene and therefore protected by the First Amendment. The three-fold test of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), is semantically clear: (1) do the materials, taken as a whole, appeal primarily to prurient interests of the average adult (or, if directed to deviants, to the prurient interests of the intended group, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966)?; (2) are the materials patently offensive because they affront contemporary community standards relating to sexual matters?;² and (3) are the materials utterly without redeeming social value? We recognize our nondelegable duty to decide, even as against a contrary jury verdict, that a given work is non-obscene, if we are so convinced. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).

Unfortunately, we are unable to resort to a simple matching exercise as we did in Hunt v. Keriakos, 428 F.2d 606 (1st Cir. 1970), comparing the materials at issue here with similar ones given absolution by the Supreme Court or even by other courts. The comparative materials submitted in evidence by the defendants comprise such magazines as those we found non-obscene in Hunt, supr...