United States v. John Darnell, III

316 F.2d 813, 1963 U.S. App. LEXIS 5454

• Court: Court of Appeals for the Second Circuit
• Decided: April 26, 1963
• Docket: 27692_1
• Status: Published

Opinions

PER CURIAM.

Defendant mailed to a married woman of his acquaintance a letter wherein he discussed more frankly than fastidiously his and her personal relations with her husband, including homosexual practices described baldly in four- and three-letter words. Her complaint to the postal authorities, on receipt of the letter, set the inevitable wheels of justice in motion, to result in his conviction of violation of 18 U.S.C. § 1461, a six months’ prison term suspended, and an order for probation for two years.

There is no dispute as to the facts as found by the judge on waiver of trial by jury, and we can find no escape from holding the letter at least “filthy” under current precedents culminating in Roth v. United States, 354 U.S. 476, 492, 77 S.Ct. 1304, 1 L.Ed.2d 1498, affirming United States v. Roth, 2 Cir., 237 F.2d 796, 797-799, 799-800. This is a result which we cannot view with satisfaction, since a private communication only brought to light by the addressee would hardly seem to merit criminal prosecution, particularly when it involves merely use of coarse language for which the writer could have substituted more refined phraseology, had he been so minded. But as the Roth case and other authorities, such as Congressional hearings, show, this statute is an important part of deeply cherished legislation, Congress having passed 20 obscenity laws from 1942 to 1956, with similar laws in force in practically all the states and supported by international agreements of over 50 nations. It is not appropriate for a constitutionally “inferior” federal court to set itself against legislation so strongly buttressed as this now is, however distasteful enforcement may be in a particular instance.

Conviction affirmed.