United States v. Joe Davis

353 F.2d 614, 1965 U.S. App. LEXIS 3745

• Court: Court of Appeals for the Second Circuit
• Decided: December 6, 1965
• Docket: 29518_1
• Status: Published

Opinions

LUMBARD, Chief Judge.

This is an appeal from a conviction and sentence after a trial by a jury, in the Southern District of New York, for violation of 18 U.S.C. §§ 1461, 1463, sending obscene matter through the mails and mailing matter in indecent wrappers.

Counts one through five of the indictment charged that on various occasions Davis mailed packages whose wrappings bore an obscene label advertising defendant’s “party records,” in violation of § 1463. Counts twenty-two and twenty-three charged the mailing of two obscene phonograph records, in violation of § 1461, and counts six through twenty-one charged the mailing of advertising which described the means for procuring the obscene records of counts twenty-two and twenty-three, in violation of § 1461.¹ As it is not alleged that these advertisements are themselves obscene, there must be a finding that the phonograph records are obscene in order to find the advertisements violative of § 1461.

At trial, the parties stipulated the existence of each and every element of the crime charged, except that the phonograph records and labels were obscene. In oral argument before this court both sides declared they had agreed to submit the remaining issue to the jury without any testimony of any kind. The opportunity to require and present evidence about community standards of obscenity existed but was declined by that agreement. Compare United States v. Klaw, 350 F.2d 155 (2 Cir. 1965). The jury had before it only the labels, the advertisements, the phonograph records and record jackets.

The jury returned a verdict of guilty on all counts. Judge Kaufman, who presided at .the trial, then made an independent examination of the evidence and determined that the finding of guilty by the jury did not invade Davis’ First Amendment rights to freedom of the press and speech as the materials at issue were obscene and therefore not entitled to First Amendment protection. He imposed a fine of $1,000 on count one, and concurrent six-month suspended sentences on the remaining counts.

Davis does not allege as error any portion of Judge Kaufman’s charge or the procedure employed by the district court. The sole issue before us is the same as was before Judge Kaufman, whether Davis is entitled to First Amendment protection because the labels and records are not obscene. We find that they are obscene under the tests established by the Supreme Court, and we affirm the judgment below.

To determine whether the matter before us is obscene, we must apply the now familiar test:

“[Wjhether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (1964); Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

Further, we are instructed to determine whether the material is patently offensive. Mutual Enterprises, Inc. v. Day, 370 U.S. 478, 486, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962).

Applying these tests, we find that both the labels and the records are obscene. The records are without “literary or scientific or artistic or any other form of social importance.” Jacobellis v. State of Ohio, supra, 378 U.S. at 191, 84 S.Ct. at 1680. Each record jacket and record “taken as a whole” makes abundantly clear the meaning and content of the recording. We also find that, despite the feeble attempt at double-entendre humor on the mailing label, the sole intended meaning of the label is obvious and far exceeds the permissible level of candor.

The appellant’s other contentions do not merit discussion.

The judgment is affirmed.

1 . Count twenty-four, charging Davis with conspiring to violate § 1461, was dismissed during trial on the government’s motion.