United States v. Robert J. Baranov

474 F.2d 591, 1973 U.S. App. LEXIS 11730

Opinions

PER CURIAM:

Baranov appeals from a conviction for mailing obscene matter in violation of 18 U.S.C. § 1461. We reverse.

The government’s case consisted of photographs, advertisements, a motion picture and proof of mailing.

As we are required to do, we have reviewed the evidence de novo. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Wasserman v. Municipal Court of the Alhambra Judicial Dist., 449 F.2d 787 (9th Cir. 1971); Childs v. Oregon, 431 F.2d 272 (9th Cir. 1970), rev’d on other grounds 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed. 2d 542 (1971). We have found the usual tasteless pictures focusing on the exterior human genitalia.

However, none of this material appears to be any more offensive or distasteful than what the Supreme Court has found not obscene. United States v. 392 Copies of Magazine “Exclusive”, 253 F.Supp. 485 (D.Md.1966), aff’d 373 F.2d 633 (4th Cir. 1967), rev’d sub nom. Central Magazine Sales v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967); Pinkus v. Pitchess, 429 F.2d (9th Cir. 1970), aff’d 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970). Cf. United States v. 56 Cartons Containing 19,500 Copies of Mag., 373 F.2d 635 (4th Cir. 1967), rev’d sub nom. Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967).

The materials in both United States v. Miller, 455 F.2d 899 (9th Cir. 1972) and United States v. Young, 465 F.2d 1096 (9th Cir. 1972) were substantially more explicit than those involved here. Cf. United States v. Arno, 463 F.2d 731 (9th Cir. 1972).

Reversed.