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United States v. Wild

decided: October 29, 1969.


Lumbard, Chief Judge, and Smith and Feinberg, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge:

Edward A. Wild, Jr., and Louis Corrado appeal from their convictions by a jury in the Southern District of New York of violating the Comstock Act. 18 U.S.C. ยง 1461. They were found guilty of conspiracy to use the mails for conveyance and delivery of obscene color slides and photographs and of numerous mailings of obscene color slides and information regarding how to obtain them. Wild was sentenced to two years imprisonment; the execution of a similar sentence upon Corrado was suspended, and he was placed on probation for two years.

The appeals raise two questions: whether the slides are in fact obscene and whether the searches and seizures conducted by postal inspectors and deputy marshals were proper. As we find that the slides and photographs are obscene and that the material which was introduced in evidence against the appellants was properly seized, we affirm the convictions.

The question of obscenity can be disposed of merely by stating that these slides are unquestionably hard core pornography. The color slides which prompted prosecution were of two general types. The first group presented a nude male, seated or lying facing the camera, holding or touching his erect penis. The second group of slides depicts two nude males in the act of fellatio.

There is no conceivable claim that these color slides have redeeming social value, and none was made. With regard to the other two elements which the Supreme Court has specified must be present for a finding of obscenity -- appeal to the prurient interest of the group likely to receive the allegedly obscene material and patent offensiveness under contemporary community standards -- the appellants argue that the Government introduced no evidence other than presenting the slides themselves. More specifically, appellants contend that the slides were designed for a male homosexual audience and that the jury was unable to decide whether there was an appeal to the prurient interest of that group without expert testimony.

We do not believe, as appellants in effect urge, that the Constitution requires the Government to produce expert testimony about appeal to the prurient interest and contemporary community standards in every obscenity case. Compare Frankfurter, J., concurring in Smith v. California, 361 U.S. 147, 164-167, 80 S. Ct. 215, 4 L. Ed. 2d 205, with Harlan, J., concurring in part and dissenting in part, Id., at 170-171, 80 S. Ct. 215. It is clear that such testimony can be necessary on certain facts such as those presented in United States v. Klaw, 350 F.2d 155 (2d Cir. 1965), heavily relied on by appellants. However, the present case presents no such peculiar problems of proof.*fn1

We hold that in cases such as this the trier of fact needs no expert advice. As noted above, there was no claim of redeeming social importance. Cf. United States v. A Motion Picture Entitled "I Am Curious-Yellow," 404 F.2d 196 (2d Cir. 1968). One group of slides graphically depicts a sexual act and the other group focuses attention on the erect genitalia of the nude male models. In this context, the issues of prurient appeal and offensiveness to contemporary community standards can be dealt with by a jury without expert help. As the Supreme Court has stated, "in the cases in which this Court has decided obscenity questions since Roth, [Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498] it has regarded the materials as sufficient in themselves for the determination of the question." Ginzburg v. United States, 383 U.S. 463, 465, 86 S. Ct. 942, 944, 16 L. Ed. 2d 31 (1966). Simply stated, hard core pornography such as this can and does speak for itself.*fn2

In a remarkably similar case in which a conviction under section 1461 was unanimously affirmed, Judge Prettyman wrote:

Most of the difficulty which enshrouds the discussion of the law concerning obscenity and filth develops upon consideration of books and magazine articles. Here arise problems of scienter, the meaning and effect of the whole, the value of the work to proper interests of the public, the contemporary community standards in similar matters, and other baffling problems under our precious right of free speech, discussd in the several opinions in Smith v. California. [361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205] But we have no such problem in the case at bar. These are stark, unretouched photographs -- no text, no possible avoidance of scienter, no suggested proper purpose, no conceivable community standard which would permit the indiscriminate dissemination of the material, no alleviating artistic overtones. These exhibits reflect a morbid interest in the nude, beyond any customary limit of candor. They are 'utterly without redeeming social importance.' * * *

We think that photographs can be so obscene -- it is conceivably possible that they be so obscene -- that the fact is uncontrovertible. These photographs are such. United States v. Womack, 111 U.S.App.D.C. 8, 294 F.2d 204, 205-206 (footnote omitted), cert. denied 365 U.S. 859, 81 S. Ct. 826, 5 L. Ed. 2d 822 (1961).

See also, Kahm v. United States, 300 F.2d 78 (5th Cir.), cert. denied 369 U.S. 859, 82 S. Ct. 949, 8 L. Ed. 2d 18 (1962); United States v. Davis, 353 F.2d 614 (2d Cir. 1965), cert. denied 384 U.S. 953, 86 S. Ct. 1567, 16 L. Ed. 2d 549 (1966). Cf. Manual Enterprises v. Day, 370 U.S. 478, 489-490, 8 L. Ed. 2d 639, 82 S. Ct. 1432 and n. 13, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962) (opinion of Harlan, J.). Judge Bonsal's charge to the jury properly defined obscenity in light of the relevant Supreme Court cases; the jury was capable of applying those tests to this material.

Finally, we note that appellants' own evaluation of the slides confirms the finding of appeal to the prurient interest. Mishkin v. New York, 383 U.S. 502, 508, 86 S. Ct. 958, 16 L. Ed. 2d 56 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966). In considering the slides, the jury had before it brochures which the appellants had mailed out along with sample slides. These advertisements seem to us to constitute the type of pandering which is relevant to a determination of obscenity. Although appellants contend that Judge Bonsal's charge on the issue of pandering was improper, no such objection was made to this portion of the charge at trial and we need not consider it here. United States v. Re, 336 F.2d 306, 316 (2d Cir.), cert. denied, 379 U.S. 904, 85 S. Ct. 188, 13 L. Ed. 2d 177 (1964). Fed.R.Crim.P. 30.

Appellants' other main contention is that the search and seizure of materials without a search warrant in an obscenity case violates their rights under the First, Fourth, and Fifth Amendments. Both appellants were arrested on December 1, 1965, in an apartment building on Pierrepont Street in Brooklyn where they resided. The arrests were made pursuant to bench warrants issued following the indictment, and appellants do not dispute the lawfulness of their arrests. As an incident to the concededly lawful arrests, postal inspectors and deputy marshals immediately conducted searches of both the Wild and Corrado apartments where the arrests took place. In addition, the officers interrupted their search of Corrado's apartment and went with Corrado to a third apartment -- an "office" ...

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