United States v. West Coast News Company

• Citation: 228 F. Supp. 171
• Decision Date: 25 March 1964
• Docket Number: No. 6615.,6615.
• Parties: UNITED STATES of America, Plaintiff, v. WEST COAST NEWS COMPANY, Inc., a California corporation, Sanford E. Aday and Wallace De Ortega Maxey, Defendants.
• Court: U.S. District Court — Western District of Michigan

228 F. Supp. 171

UNITED STATES of America, Plaintiff, v. WEST COAST NEWS COMPANY, Inc., a California corporation, Sanford E. Aday and Wallace De Ortega Maxey, Defendants.

No. 6615.

United States District Court W. D. Michigan, S. D.

March 25, 1964.

George E. Hill, Dist. Atty., Robert G. Quinn, Asst. Dist. Atty., Grand Rapids, Mich., Marshall Tamor Golding, Justice Dept., Washington, D. C., for plaintiff.

Stanley Fleishman, Hollywood, Cal., VanderVeen, Freihofer & Cook, Grand

Rapids, Mich., George R. Cook, Grand Rapids, Mich., of counsel, for defendants.

FOX, District Judge.

On May 24, 1960, the grand jury returned a nineteen count indictment charging the defendants¹ with mailing or transporting in interstate commerce eight obscene books, in violation of Title 18 U.S.C. §§ 1461 and 1462.

After protracted pretrial matters had been disposed of,² the trial by jury began October 29, 1963, and ended December 10, 1963.³

The jury returned a verdict of guilty on five counts: 6, 10, 12, 13 and 14.⁴ The jury also reported that it was unable to agree on any of the other counts.⁵

At the close of the government's proof, at the close of the trial and before sentence, the court denied defendants' motions for judgment of acquittal, in arrest of judgment, and for a new trial.⁶ In the course of its rulings on these post-trial motions, the court referred to some of its opinions written during the trial.

It is the purpose of this omnibus opinion to correlate certain written opinions by the court to the rulings made on the post-trial motions.

The main issues raised by these three motions can be grouped as follows:

1. Constitutionality of statutes;

2. Presentation of the challenged books to the jury;

3. Double jeopardy, res judicata, estoppel;

4. Expert witnesses;

5. Comparative evidence; and

6. Sufficiency of the evidence.

Other specific grounds relied upon in these motions require no expanded comment.⁷

The court's opinion on these six issues follows:

1. CONSTITUTIONALITY OF STATUTES.⁸

In this area, defendants seek again to relitigate the issues before the United States Supreme Court in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, 1509. This court need not discuss the various themes of unconstitutionality now claimed by defendants. Further treatment of the constitutional issues is superfluous.

2. PRESENTATION OF THE CHALLENGED BOOKS TO THE JURY.⁹

After this issue was raised by the parties in the course of the trial, the court filed a memorandum opinion resolving that point. That opinion follows.

However, one comment should be made first. During the course of the trial, defendants' counsel, Mr. Fleishman, repeatedly misinterpreted the court's use of the term "indicted books." He argued that the books were on trial, and that the court was trying to censor the books. The court wants to make it clear, once and for all, that whenever the court referred to the eight books involved, in this case, as the "indicted books," it did so only as a matter of descriptive convenience. In this opinion, we shall refer to the material as the challenged books.

As the court frequently pointed out during the course of the trial, this court does not consider the books to be on trial; the defendants, as persons, are on trial. See Chief Justice Warren's statement in his concurring opinion in Roth v. United States, supra, 354 U.S. page 495, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

Minor changes have been made in the previously written opinions for the purpose of clarification. Footnote numbers have been changed to correspond with the omnibus opinion.

At a pretrial conference in this matter held on Wednesday, October 23, 1963, the United States Government first proposed a procedure for submitting the books to the jury. At that time, the government proposed that the books themselves be submitted to the jury to be read by the jurors in the jury room, with instructions to read the books and not discuss them. This was suggested by the government in contradistinction to the predicted claim by the defense that the books should be read aloud in the court room.

At that pretrial, defense counsel refused to stipulate to this procedure.

At a continuation of the conference on pretrial matters, held October 28, 1963, the government reiterated its position as to this procedure. At that time the following conversation took place:

"MR. FLEISHMAN: It is our view that the books should be read and must be read to the jurors as part of the public trial since the books really are on trial, that they are charged with being obscene.

"THE COURT: According to Chief Justice Warren, it is not the books that are on trial exactly, it is the individual and individual's conduct and the books are a part of the picture of the individual's conduct.

"MR. FLEISHMAN: * * * The nub of the question here is that these books are obscene and since that is a crucial aspect, we do not believe that at a public trial, that is required and anything short of that would be a denial of a public trial.

"THE COURT: Well, I won't rule on that proposition at the moment either. I'll consider it. Anything else?"¹⁰

The procedure for submitting books to the jury has varied over the years. At one time it was deemed proper to have the portions of an obscene character read to the jury by the prosecution, and the other portions essential to a proper understanding of what was read by the prosecution to be read to the jury by the defendants. Burton v. United States, 142 F. 57 (CCA 8, 1906). This procedure undoubtedly would be error today because of the decision in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L. Ed.2d 1498, which held that each book must be considered as a whole.

In another very early case concerning obscenity, the defendant claimed error, in that the court permitted letters under indictment to be taken by the jury to the jury room without first having been read to the jury or by the jury upon the trial. Winters v. United States, 201 F. 845 (CC A 8, 1912). The court noted that defendant made no objection to this procedure and that the defendant had never waived any objection to this procedure. The court also added that it would have been better practice to have the letters either read to the jury, or given to the jury and with each one of the jurors required to read them while the case was on trial.

It is common procedure in criminal cases to permit papers or documents which are in evidence to be taken by the jury on their retirement.¹¹

Since each of the books in the indictment has been admitted into evidence in this case as an exhibit, it may at first appear that these general rules of evidence apply. It may be that in some cases, however, where the facts involved demand that the exhibits not be taken by the jury to the jury room, the general rules do not apply; and, therefore, the question is said to reside within the discretion of the trial judge. Little v. United States, 73 F.2d 861 (CCA 10, 1934); Buckley v. United States, 33 F. 2d 713 (CCA 6, 1929); 12 Cyclopedia of Federal Procedure, Third Edition, Section 48.323; and Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (CCA D.C.1954).

The courts have not been ignorant of the time factor questions involved in submitting matters to the jury for their consideration. In United States v. Rebhuhn, 109 F.2d 512 (CCA 2, 1940), the offered matter consisted of circulars which advertised books for sale. The court found the question on appeal to be whether books and the circulars were obscene; on appeal the defendant objected that the jury did not adequately examine the evidence and defendant relied upon the fact that the jury had deliberated only three hours.

Judge Learned Hand in writing for the court, held that the time element was a question for the judge in deciding whether to grant a new trial, and found that the point was wholly without merit.

It may be that the "book as a whole" test established by the Roth case, supra, would have forced Judge Hand to rule differently if that case were to arise now; but the fact is that this case is still authority for the proposition that the evidence may be submitted to the jury for their reading.

The only other reference to this procedure in a great number of early cases dealing with obscenity is found in Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765 (1896). That opinion merely discloses that the article was read to the jury and there exists no comment in that case to add any assistance to the court's determination here.

On the other hand, a very few cases, Yudkin v. State of Maryland, 229 Md. 223, 182 A.2d 798 (1962), just as cryptically stated that prior to the close of the state's case, the trial court sent the jury to the jury room to read the book in question.

The clearest and most inclusive discussion of this issue known to the court is found in the opinion for the United States Court of Appeals for the Eighth Circuit in Alexander v. United States, 271 F.2d 140 (1959).

The Alexander case involved a jury trial on two counts charging violation of Title 18 U.S.C.A. § 1462. The counts named certain books as being obscene: "The Hot Rod;" "The Lion's Den;" "The Sex Factory;" "Becky McLane;" and "New Virginia Bell."

The statement of this case reveals that the Government first requested permission to read one of the allegedly obscene books to the jury. The request was denied, even after the Government had pointed out that the Roth case, supra, required consideration by the jury of the book in its entirety.

Counsel for the defendants moved that the two of the books be read to the jury. This motion was likewise denied. The court's opinion in this regard is as follows:

"Defendant's further claim that the court committed prejudicial error in overruling his motion to have `Mr. Hot Rod' and `The Lion's Den' read to the jury in open court is without merit. Both the Government and defendant had asked that the books be

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