United States v. Obscene Magazines, Book and Advertising Materials, Eugene Schoenfeld, M.D., Claimant-Appellant

653 F.2d 381, 1981 U.S. App. LEXIS 18644

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 1981
• Docket: 79-3300
• Status: Published

Opinions

J. BLAINE ANDERSON, Circuit Judge:

Dr. Eugene Schoenfeld has challenged the district court’s determination that six magazines and one book sought to be imported by him were obscene and thus subject to forfeiture as provided by § 305 of the Tariff Act, 19 U.S.C. § 1305.

The relevant portion of § 1305 provides that:

“All persons are prohibited from importing into the United States from any foreign country . .. any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral . ¹

19 U.S.C. § 1305. It is well settled that the test for determining the obscenity of materials proscribed by 19 U.S.C. § 1305 is governed by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its progeny. United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n.7, 93 S.Ct. 2665, 2670 n.7, 37 L.Ed.2d 500 (1973); United States v. 2,200 Paper Back Books, 565 F.2d 566, 569-70 (9th Cir. 1977). Before a publication can be adjudged obscene, the trier of fact must find that (a) “ ‘the average person, applying contemporary community standards,’ would find that the work, taken as a whole, appeals to the prurient interest;” (b) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;” and (c) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”² Miller, supra, 413 U.S. at 24, 93 S.Ct. at 2615. The coalescence of all three elements of the test is required to support a determination that a work is obscene. Thus, even prurient, patently offensive depictions or descriptions of sexual conduct are not obscene if they have serious literary, artistic, political, or scientific value. Id. at 26, 93 S.Ct. at 2616.

At the forfeiture proceeding below, the government introduced the six publications into evidence and rested. Dr. Schoenfeld then testified that a substantial portion of his study and practice of medicine had been devoted to the subjects of drug use and human sexuality, and that the materials could be used in connection with that area of his medical practice and professional writing. While he conceded at oral argument that “in and of themselves,” the publications are obscene under the Miller test, he contended that § 1305 was not intended to prohibit the importation of such materials when destined for use by a doctor in furtherance of his medical practice and professional writing. He further contended that unless the statute was interpreted as he suggested, then it unconstitutionally deprives him of the right to practice medicine.

In support of his argument, Dr. Schoenfeld cites United States v. 31 Photographs, 156 F.Supp. 350 (S.D.N.Y.1957). The case permitted a medical researcher to import colorably obscene material despite the unqualified language of § 1305 because the material was said to be of use in research. Dr. Schoenfeld contends that 31 Photographs creates “a conditional privilege in favor of scientists and scholars, to import material which . . . [is] obscene” despite § 1305, if the material furthers their research or work. Id. at 358-59.

We note that 31 Photographs did not expressly create a medical research exception to § 1305, it mentioned the existence of the privilege as a possible alternative reason for its decision. But even if we were to hold that such a privilege does in fact exist in this circuit, we would be compelled to hold on the record presented here, that Dr. Schoenfeld has not proven facts that would support his claim of privilege.

The record indicates that the district judge found Dr. Schoenfeld’s legal theory “interesting,” but continuously expressed his concern over Schoenfeld’s failure to develop the requisite factual foundation to support it. Having chosen to argue that the publications were somehow insulated from the operation of § 1305’s ban on the basis of his particularized and subjective utilization of them, it was incumbent upon him to demonstrate that the materials had that capacity, i. e., that they could be so used. The district judge ultimately found that Dr. Schoenfeld had failed to sustain his burden. The district court’s factual findings are reviewed under the clearly erroneous standard of Fed.R.Civ.P. 52(a). After a thorough review of all the evidence, we are not left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).

Schoenfeld argues that the trial judge had no reason or authority to disregard or discredit his testimony. This attack rests upon a misapprehension of the court’s ruling. While much of Dr. Schoenfeld’s testimony may leave persons of reasonable intelligence shaking their heads in disbelief, the fatal flaw in Schoenfeld’s proof finds its source not in what he said, but rather, in what he failed to say.

In this regard, Schoenfeld claims that he was put in a “Catch 22” position in that he was asked to testify about materials that, by reason of their seizure, he had never seen. Not only is this assertion unfounded, it borders on deliberate misrepresentation. By stipulation between the parties and approved by the district court, Schoenfeld was granted an additional month to file an answer to the complaint so that he could further examine the material in preparation of his answer. By order of the court, the materials were transferred to the district in which Schoenfeld resides. At trial, Schoenfeld testified that he had reviewed the materials. Moreover, the testimony was not restricted to the specific seized materials. Schoenfeld testified that he had similar publications in his library and the trial judge invited his testimony regarding the use of them in connection with his medical practice. In short, the district court afforded Dr. Schoenfeld every opportunity to prove his case and, in fact, intervened at several points during the trial in an effort to assist both Schoenfeld and his counsel in developing the appropriate factual basis. This was not accomplished. Accordingly, the judgment of the district court is

AFFIRMED.

1 . The statute also vests discretionary authority in the Secretary of the Treasury to admit “the so-called classics or books of recognized and established literary or scientific merit,” for noncommercial purposes. Schoenfeld apparently failed to pursue this avenue for discretionary administrative relief.

2 . While the second element of the Miller test refers to patently offensive depictions or descriptions of sexual conduct specifically defíned by applicable state law, it is clear that proscriptions against obscenity contained in federal regulatory statutes, such as 19 U.S.C. § 1305, will be limited to “patently offensive representations or descriptions of that specific ‘hardcore’ sexual conduct given as examples in Miller v. California," United States v. 12 200-ft. Reels of Film, supra, 413 U.S. at 130 n.7, 93 S.Ct. at 2670 n.7. See also United States v. Various Articles of Obscene Merchandise, 600 F.2d 394, 405 (2d Cir. 1979); United States v. Cutting, 538 F.2d 835, 838-839 n.3 (9th Cir. 1976), cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977).