United States v. William Groner, D/B/A Lucky Distributors ( 1973 )

GEWIN, Circuit Judge:^*

This court sitting en banc has given full and careful consideration to the views expressed in the panel’s opinion in this case and a majority of the court has concluded to reverse the opinion of the panel.¹

The judgment of conviction entered by the district court upon a jury verdict of guilty is affirmed.

On this appeal a brief summary of Groner’s contentions will suffice. He contends that: (1) the books involved in this case are not obscene when viewed under proper constitutional standards; (2) the evidence.was insufficient to support his conviction; (3) the proceedings before the Grand Jury were defective in that a prior adversary hearing on the question of obscenity was not first conducted; (4) 18 U.S.C.A. § 1462 is unconstitutional on its face; (5) the books in question were unlawfully seized and should have been suppressed; (6) the trial court improperly instructed the jury; (7) the trial court improperly limited jury argument.

The posture of the case is adequately set forth in the panel’s opinion. We deem it unnecessary to enlarge upon that opinion’s recitation of the facts.

There are solid grounds for setting aside the opinion of the panel. As will be developed hereinafter, the requirement that the prosecution support its proof by expert testimony on the elements of obscenity is misconceived, unnecessarily burdensome, and confounds traditional concepts of proof. It is little more than a fetishism formulated in the name of the First Amendment. We conclude that expert testimony on the elements of obscenity is not a constitutional necessity.

It is, of course, settled that an appellate court in First Amendment cases must make “an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” Jacobellis v. Ohio, 1964, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793, 799. This doctrine began in Pennekamp v. Florida, 1946, 328 U.S. 331, 335, 66 S.Ct. 1029, 90 L.Ed. 1295, 1297. This means that an appellate court must take a hard look at the quantum of proof in order to insure that vital First Amendment rights are protected. Cf. Rosenbloom v. Metromedia, 1971, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296. See also the separate opinions in Firestone v. Time, Inc., 5 Cir., 1972, 460 F.2d 712, explicating this constitutional duty of an appellate court. It should go without saying that appellate courts are zealous in their efforts to protect all rights including constitutional rights of any kind, but we have been charged by the Supreme Court with making an extra effort in the First Amendment area.

The material which is claimed to be obscene in this case consists of bound textual material with sets of unrelated photo inserts. The government offered no expert testimony on the question of the obscenity of the material, choosing instead to rely for its proof on the materials together with appropriate instructions from the court to the jury. The defendant offered the testimony of experts in the fields of literature and psychology to demonstrate that the materials were not obscene. The jury returned a verdict finding defendant guilty.

The panel opinion, however, set aside the jury’s verdict on the ground that it was not supported by expert testimony. We turn now to a consideration of the panel’s reasoning. Its limited scope is to be noted. It excludes from the reach of the requirement that expert testimony be offered, those cases which are said to fit into the holding of this court in Kahm v. United States, 5 Cir., 1962, 300 F.2d 78, described as materials which are “graced with no plot, no character development, no exemplification of independent literary efforts.” 475 F.2d p. 556. It also excludes from its reach those cases where “the questioned material might be so terribly depraved and so lacking in candor that anyone would know without question that the community norm had been forsaken in the writer’s quest for sexual sensationalism” or where “the appeal of the material could only be to the prurient interests of its readers.” P. 559.

In short, the panel found expert testimony necessary only for the close cases; but even to this extent, it is an ill-founded and an unwise imposition on the prosecution. As will be seen, the panel was led into error by the positions taken in the trial court by counsel for the government and the defendant as to the prevailing law of obscenity.

I.

The premise underlying the requirement of expert testimony seems to be the difficulty that the appellate court may experience in carrying out its duty to make an independent constitutional judgment as to obscenity vel non. The panel, citing Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L. Ed.2d 1498, perceived the obscenity test to be as follows:

“1. Whether the materials, taken as a whole, appeal primarily to the prurient interests of the average adult;

“2. Whether the materials are patently offensive because they go substantially beyond the customary limits of candor in their description of sex and nudity; and

“3. Whether the materials are utterly without redeeming social value.”

This test, however, does not come from Roth but apparently represents an amalgam of the individual views of members and former members of the Supreme Court, taken from their respective concurring or dissenting opinions in Roth and subsequent decisions involving obscenity. It is not the prevailing test although it was the test used by the. trial court and by the panel at the suggestion of counsel for the parties. Elements Numbered 2 and 3 are not a part of the prevailing test and Element Numbered 1 is incomplete in that it fails to state the test in the context of contemporary community standards.

There are only two decisions of the Supreme Court in which the test for determining obscenity has been stated in a majority opinion. The first is Roth and the other is the recent opinion in Kois v. Wisconsin, 1972, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312. The court was fragmented in the interim decisions where the obscenity test was involved and no particular test mustered a majority.² We therefore take our test from Roth and Kois.

First, Roth held that obscenity is not within the area of constitutionally protected speech or press. 354 U.S. at 485, 77 S.Ct. 1304. Then, to define obscenity the Court stated that obscene material is material which deals with sex in a manner appealing to prurient interest. 354 U.S. at 487, 77 S.Ct. 1304. The test to be used by the fact finder was stated as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. 354 U.S. at 489, 77 S.Ct. 1304. Other language in Roth indicated that a finding of obscenity would necessarily preclude the presence of redeeming social importance in the material but this does not appear to be an element of the test. 354 U.S. at 484-485, 77 S.Ct. 1304.

The first variance from the Roth test appeared in Manual Enterprises v. Day, 1962, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, where Justice Harlan, joined only by Justice Stewart, added to the Roth test the patently offensive element. No other member of the court has ever joined in this addition. Given this fact, it is clear that there is no basis for element numbered 2 of the test used in the panel opinion.

In Memoirs v. Massachusetts, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, the test was restated by three justices as follows:

“[Tjhree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”

Justice Clark, one of the majority of five in Roth, dissented on the ground that Roth defined obscenity as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeal[ed] to prurient interest.” He rejected the “utterly without redeeming social value” portion of the test. Justice White, although not a member of the Roth court, also rejected the “utterly without redeeming social value” element.

This was the last word on the test for determining obscenity until Kois v. Wisconsin, supra, where the court in a per curiam opinion representing the views of seven justices ³ interpreted the Roth test as follows:

“Material may be considered obscene when ‘to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest’.” 408 U.S. at 230, 92 S.Ct. at 2246, 33 L.Ed.2d at 315.

Thus it is now clear from Kois that the test for obscenity does not include the element “utterly without redeeming social value.” This was element numbered 3 of the test used in the panel opinion.

At this point it is plain that the requirement of expert testimony as to these two elements of the test used by the panel is without premise and the reasons for the requirement to this extent are simply non-existent.

But there is more. The panel opinion is in error as to another element of the Roth-Kois test and, as will appear, the other premise for requiring expert testimony disappears. The panel opinion places considerable weight in opting for expert testimony on the problems inherent in the fact finder ascertaining the national standard.⁴

Again, the Supreme Court decisions must be considered in their totality. We begin with Roth where we find the first and only majority statement on this element of the test until Kois, where the test was reiterated. That test, it must be remembered, is the following: material may be considered obscene when to “the average person, applying contemporary community standards” the dominant theme of the material taken as a whole appeals to the prurient interest. There has been no statement in any majority opinion of the Supreme Court as to the geographical scope of the term “community”.

Indeed, Justice Black in his dissent in Ginzburg v. United States, 1966, 383 U. S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, pointed to this as a fallacy in the test for obscenity, saying that he was uncertain as to whether “community standards” meant standards which were “world-wide, nation-wide, section-wide, state-wide, country-wide, precinct-wide or township-wide.” 383 U.S. at 479, 86 S.Ct. at 952. He pointed to the discussion of the subject in Jacobellis v. Ohio, supra, where Justices Brennan and Goldberg deemed community standards to mean a nationwide or national test. Chief Justice Warren, joined by Justice Clark, disagreed. Justices Brennan and Goldberg deemed the community to be “society at large” or the “people in general”. The Chief Justice and Justice Clark deemed community standards to mean just that, community standards and not a national standard. They did not believe that there was a provable national standard. It was recognized that a community approach might result in the material being proscribed as obscene in one community but not in another, but this was deemed proper in a nation with diverse communities.

Justice Harlan in his opinion in Manual Enterprises v. Day, supra, joined by Justice Stewart, concluded that the proper test under the federal statute regulating the use of the mails to move obscene material, 18 U.S.C.A. § 1461, is “a national standard of decency.” He found it unnecessary to reach the question whether Congress could constitutionally prescribe a “national standard of decency” which would have the consequence of denying some sections of the country access to material which might comport with prevailing community standards and yet violate the national standard.

The short of the matter is that the Supreme Court has not enunciated a national standard test in any majority opinion and no combination of members of the court making a majority have indicated approval of such a standard.

As the Kois court stated, the test is whether the material is obscene to the average person, applying “contemporary community standards.” The court expressly recognized that this left room for some latitude of judgment in the application of the test.

This language in Kois came from Roth and we advert to Roth in construing the scope of the community. The opinion there quotes from the charge of the trial court to the jury in the federal prosecution under 18 U.S.C.A., § 1461:

Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the ^* trier of facts, he was judging each item as a whole as it would affect the normal person, and in Roth, the trial judge instructed the jury as follows:

“. . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated indifferent and unmoved.

“The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.

* * * * * *

“In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious — men, women and children.”

We do not construe this language as using community in a national or country-wide sense.⁵ We do not think that expression was intended to create misunderstanding; it is clear to us. Considering the context in which it is used, it would not appear to refer to all of the 50 states as a community. The jury charge approved in the Roth decision, supra, speaks of “the average person in the community”, “present-day standards of the community”, and “the common conscience of the community.” Those phrases do not connote a national standard for the determination vel non of obscenity. See, e. g., Connally v. General Construction Co., 269 U.S. 385, 395, 46 S.Ct. 126, 70 L.Ed. 322, 330 (1925); Conley v. Valley Motor Transit Co., 139 F.2d 692 (6th Cir. 1943); Black’s Law Dictionary (4th Ed. 1951); Webster’s New International Dictionary (Unabridged 3d ed. 1961).

Our concept of “the community” is suggested by the declaration of our national policy in the Jury Selection and Service Act of 1968, 28 U.S.C.A., § 1861 (Sup.1972) from which we quote:

“It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” (emphasis added)

For the trial of obscenity cases under federal law “the community” should logically embrace that area from which the jury is drawn and selected. According to the Jury Act federal juries are generally drawn from a division within a district or from the district at large. Depending upon the population involved these districts vary greatly in geographical area. In a few cases a district is as large as a state; but in metropolitan areas the boundaries of a district may be comparatively small, though in such districts the population is varied and large. It does not seem reasonable or sensible to require a jury in federal criminal obscenity cases drawn from a single district or division to assess the thinking of the average person of the community, to consider the common conscience of the community, or the present-day standards of the community if the word “community” is to include all of the people within the boundaries of this vast nation North, South, East and West.

The law has been sufficiently developed to give adequate guidance to trial courts in framing instructions to be given to the jury. See the rather lengthy charge approved and set forth in Both, supra. That decision together with the decisions in Kois, Kahm and the other cases cited above fully suffice to furnish an adequate basis for the composition of appropriate jury instructions.

At this point, it is apparent that the panel opinion was decided on an erroneous view of the test to be applied in determining obscenity. Neither the “patently offensive” nor the “utterly without redeeming social value” elements are included in the test laid down by the Supreme Court, nor is the community national in scope. Without more, it should be obvious that the panel erred in imposing on the prosecution the onerous burden of supporting its proof by expert testimony on the elements of obscenity.⁶

As we view the law, the proper course for this court to take is to make “an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” Jacobellis, supra. In so proceeding, there is a concomitant duty to follow the test laid down by the Supreme Court for determining obscenity: whether “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Kois, suprá, 408 U.S. at 230, 92 S. Ct. at 2246, 33 L.Ed.2d at 315. Having examined the material in question, we have no difficulty in applying this test without the help of expert testimony in the record on the part of the prosecution.⁷

II.

When judges become entrapped and entoiled in ambiguous thickets of judge-made law they should not use their own confusion as a barricade from which to ambush Congressional enactments. In such situations juries have the ability, under proper instructions, to reach fair, sensible and practical conclusions free of the ambivalence, uncertainty and vacillation of the experts — the judges. Indeed, the wisdom of such an approach is dramatically illustrated by the panel opinion.

Early in the opinion it is clearly and emphatically stated:

“We have little trouble in finding the books involved in the instant case to be vile, filthy, disgusting, vulgar, and, on the whole, quite uninteresting. We do, however, have difficulty in equating these adjectives with the constitutional definition of obscenity.” (475 F.2d page 552 — emphasis added.)

We, too, have seen the material involved in this case and join unreservedly in the first sentence of the above quoted conclusion and judgment. The material is so vile, filthy, vulgar and revolting that a specific description of it in this opinion would be repulsive and nauseating. We are unable to agree with the second sentence of the quotation which intimates, if it does not hold, that the materials are not sufficiently vile, filthy and vulgar to meet the definition of obscenity. Strangely, in spite of the above quoted description of the materials under consideration, the opinion concludes:

“We wish to make it perfectly clear what we hold, and what we fail to hold today in the instant case. We have expressed no opinion on the issue of whether the material involved here is or is not obscene. In fact, our inability to do so is the basis for our holding that expert testimony is required on the elements of obscenity in order to furnish juries and this Court with an objective basis for deciding on the issue of first amendment rights.” (Page 559)

Fully agreeing with the accuracy of the panel’s description of the materials, it is difficult to discern the necessity for the expert testimony required by the opinion.

We do not denigrate the value or utilization of qualified expert testimony in obscenity cases. Parties should be permitted to use the testimony of qualified experts in this type of case just as in other cases, but their opinions on the subject should not control the case or necessarily form the basis of its final disposition. The pictures, books, publications or other materials involved may serve as evidence to contradict the opinion of the expert. It has long been the rule that triers of fact, judges and juries alike, are not required to accept expert opinions. Dayton P. & L. Co. v. Public Utilities, 292 U.S. 290, 54 S.Ct. 647, 78 L.Ed. 1267, 1275 (1934); Sartor v. Arkansas Natural Gas, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967, 972 (1944); China Union Lines et al. v. A. O. Anderson & Co. et al., 364 F.2d 769, 791 (5th Cir. 1965); Webster v. Offshore Food Serv., Inc., 434 F.2d 1191, 1193 (5th Cir. 1970), cert. denied, 404 U.S. 823, 92 S. Ct. 44, 30 L.Ed.2d 50 (1971).

Even though a judge is convinced that the material is vile, filthy, vulgar and disgusting, he may nevertheless permit a qualified expert to give testimony to the contrary, but such a situation presents a classic example of a factual issue which should be resolved by a jury under proper and impartial instructions from the judge. There is profound wisdom in the rule which permits judges and juries after proper consideration to disregard the opinions of experts. Many experts, all equally well qualified, often disagree in well established fields of knowledge and research such as law, medicine and theology. Typical of such disagreements is the testimony of physicians in personal injury, criminal and social security eases. They disagree as to the diagnosis and the percentage of disability involved. Time and time again courts review criminal cases in which equally well qualified psychiatrists are diametrically opposed to each other on the issue of mental illness or insanity. There are now a substantial number of cases in which different factions of the same religious group are litigating over disputed ecclesiastical concepts which ultimately lead to the necessity of resolving the ownership of valuable property. Indeed judges, presumed to be legal experts, often disagree. Experts are useful and their failure to agree does not indicate any disqualification. We simply do not believe that an obscenity case cannot be tried without the testimony of an expert. See United States v. Wild, 422 F. 2d 34 (2d Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971).

As earlier indicated it is our view that in obscenity cases the judge should first examine the materials involved to determine whether as a matter of law they are protected by the First Amendment. He should be guided by the decisions we have cited earlier, particularly Roth and Kois. If he concludes that they are constitutionally protected, they are not to be shown to the jury. If he reaches the conclusion that they are not so protected, the materials involved, any expert testimony offered, and all other necessary and appropriate evidence should be submitted to the jury, with proper instructions from the court, for a determination of guilt or innocence of the defendant under the statute involved. Title 18 U.S.C.A., § 1462. If it chooses to do so, the jury may give absolutely no weight to the initial determination of the court that the materials are not constitutionally protected.⁸

The procedure whereby juries decide complicated and intricate questions involving subjective and objective considerations is deeply engrained in American jurisprudence; they decide issues that are far more complicated than whether pictures, books, publications or other materials are obscene, lewd, lascivious or filthy. See Kahm v. United States, supra, n. 10. Juries decide the question whether a defendant is guilty beyond a reasonable doubt in all sorts of complicated criminal cases. They fix the value of pain and suffering. They pass upon the existence of certain mental attitudes and the state of mind of an individual at a particular time and place in resolving questions of intent, malice, premeditation, willfulness, sanity and insanity, and whether a confession is voluntary or involuntary. They are constantly called upon to decide what a reasonably prudent person would have done in circumstances and events which have already transpired. They resolve enigmatic, abstruse questions of negligence, contributory negligence and comparative negligence, often fixing the degree of negligence of the plaintiff and the defendant by precise percentage points.

All jury determinations do not involve constitutional issues, but many of them do require the resolution of constitutional questions of the highest priority involving life, liberty and the opportunity to engage in the pursuit of happiness. Roth v. United States, supra, authorizes a jury to assess “the common conscience of the community by present-day standards” and to determine the impact of alleged obscene materials “upon the average person in the community.”

Giving appropriate consideration to the foregoing principles, it is our conclusion that the prosecution in an obscenity case of this nature should not be burdened with the requirement to support its proof by expert testimony.

We have fully considered the other contentions made by the appellant Groner and conclude that there is no merit in any of them. The judgment of conviction is affirmed.

* Judges Bell, Coleman, Ainsworth, Dyer, In-graham, and Roney join in this opinion. To the extent that Judge Clark concurs specially, it is the majority opinion of the court.

1 . The panel opinion is dated January 11, 1972, 5 Cir., 475 F.2d 550. On March 28, 1972, a majority of this court ordered this case to be reheard en banc. The case was submitted to the court en banc on October 30, 1972.

2 . See Manual Enterprises v. Day (1962), 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639; Jacobellis v. Ohio (1964), 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; Memoirs v. Massachusetts (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. See Rednip v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 for the Supreme Court’s lineup on the test for obscenity.

3 . Justice Douglas concurred in the reversal in Kois. He has “consistently adhered to the view that a State is without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their ‘obscenity.’ ” Redrup v. New York, 1967, 386 U.S. 767, 770, 87 S.Ct. 1414, 1416, 18 L.Ed.2d 515. Justice Stewart concurred in the result. His view of the law in obscenity cases is that all save hard-core pornographical material is protected by the First Amendment. Jacobellis v. Ohio, supra, 378 U.S. at 197, 84 S.Ct. 1676 (concurring opinion); Ginzburg v. United States, infra, 383 U.S. at 497-500, 86 S.Ct. 942, and the definition of hard-core pornography in fn. 3 (dissenting opinion).

4 . This is not a part of the test used by the panel; indeed no geographic limitation whatever is stated. See Element Numbered 1. The district court, however, at the request of counsel, required the jury to apply a national standard.

* [354 US 490, 77 S.Ct. 1311]

5 . Here again, however, counsel for both parties urged a national standard on the trial and appellate court.

6 . As the government points out, in the normal course of prosecuting it sometimes uses experts, depending on the circumstances of each case.

There are decisions which make expert testimony on the part of the prosecution mandatory. See United States v. Klaw, 2 Cir., 1965, 350 F.2d 155; In re Giannini, 1968, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535. But see United States v. Brown, E.D.Va., 1971, 328 F.Supp. 196, aff’d No. 71-1759, (4 Cir., Jan. 31, 1972), and United States v. Wild, 2 Cir., 1969, 422 F.2d 34, holding that expert testimony is not required where the material in question constitutes hard core pornography. In Ginzburg, the Supreme Court noted that in the obscenity cases it had decided since Roth, the materials had been regarded “as sufficient in themselves for the determination of the question” of obscenity. 383 U.S. at 465, 86 S.Ct. at 944. It is to be noted that this statement is not limited to cases involving hard core pornography. Indeed, the Supreme Court has not adopted a hard core pornography distinction or class of cases in the law of obscenity. See Ginzburg, 383 U.S. at 497-500, 86 S.Ct. 942 (Dissenting op. of J. Stewart).

7 . The panel decision, dated January 11, 1972, preceded the Kois opinion and this fact may point to a reason for the use by the panel of the incorrect test. It does not explain the dissent’s slavish adherence to the panel opinion in the face of Kois.

8 . The procedure described is commonplace in the trial of criminal cases. A prime example arises when the prosecutor offers a confession by the defendant and it is challenged as being involuntary. The decisions in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), clearly describe the required procedure now known to all courts in determining whether a confession is voluntary or involuntary. As a matter of constitutional law the jury is not to hear the confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is for the judge to make the initial determination of voluntariness.