The opinion of the court was delivered by: MURPHY
Defendant convicted of violating 18 U.S.C.A. § 1463,
i.e., that he 'did knowingly deposit for mailing a postal card * * * upon which language of an indecent character was written', moves for judgment of acquittal, F.R.Crim.P.Rule 29(a), and in arrest of judgment, Id. Rule 34, 18 U.S.C.A.
Defendant, a married man, mailed from Pennsylvania to an unmarried female in Kentucky nineteen postal cards purportedly describing their previous intimate sexual relationship and broken friendship. Defendant was indicted in nineteen counts, one as to each postal card containing a verbatim account of the particular message. Defendant was without counsel. Since there were constitutional questions involved, two counsel instead of one were named to represent him. Upon pre-trial motion, rule 12(b), eight counts were dismissed, not because of their innocuous character, but because the statements made therein were embraced within the prohibitions of 18 U.S.C.A. § 1718 as to language of a libelous, scurrilous, defamatory character.
Upon trial to a jury defendant did not testify or offer any testimony in his own behalf. The jury found him not guilty as to four counts;
guilty as to the remaining seven counts.
The position of his counsel then and now was: (1) that the indictment does not state facts sufficient to constitute an offense against the United States; (2) that the portion of the statute under which defendant was indicted is unconstitutional; (3) that the alleged offense set forth in the various counts is not within the meaning of the statute.
While defense counsel did not spell out their claims of unconstitutionality, we assume from their briefs and arguments that they challenged the power of Congress to enact such a statute, but see Art. I, § 8, cl. 7, of the United States Constitution, and see Roth v. United States, 1957, 354 U.S. 476, at page 493, 77 S. Ct. 1304, 1 L. Ed. 2d 1498; Public Clearing House v. Coyne, 1904, 194 U.S. 497, 506-508, 24 S. Ct. 789, 48 L. Ed. 1092; that the statute in question interferes with freedom of expression as guaranteed by the First Amendment, but see Roth v. United States, supra, 354 U.S. at pages 483-485, 77 S. Ct. 1308-1309; that the statute does not provide a reasonably ascertainable standard of guilt and therefore violates the due process clause of the Fifth Amendment, but see Roth v. United States, supra, 354 U.S. at pages 491, 492, 77 S. Ct. 1312, 1313.
As to the Fifth Amendment, see Roth v. United States, supra, 354 U.S. at page 491, 77 S. Ct. at page 1312 quoting from Rosen v. United States, 1896, 161 U.S. 29, at page 42, 16 S. Ct. 434, 40 L. Ed. 606, 'Everyone who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd and lascivious.'
And again, see Roth v. United States, Id., 'Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * The Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *' United States v. Petrillo, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 1542, 91 L. Ed. 1877. These words, applied according to the proper standards for judging obscenity * * * give adequate warning of the conduct proscribed and mark '* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.' Id. 332 U.S. at page 7, 67 S. Ct. at page 1542.'
As to the proper standard for judging obscenity, see Roth v. United States, supra, 354 U.S. at page 489, 77 S. Ct. at page 1311. An approved test is 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' As to the latter, sex and obscenity are not synonymous and the portrayal of sex per se is not sufficient to deny constitutional protection. Roth v. United States, supra, 354 U.S. at page 487, 77 S. Ct. at page 1310; United States v. Dennett, 2 Cir., 1930, 39 F.2d 564, 76 A.L.R. 1092; Consumers Union v. Walker, 1944, 79 U.S.App.D.C. 229, 145 F.2d 33, at page 35. Material is obscene when it 'deals with sex in a manner appealing to prurient interest.' Roth v. United States, supra, 354 U.S. at page 487, 77 S. Ct. at page 1310; and see Butler v. Michigan, 1957, 352 U.S. 380, 77 S. Ct. 524, 1 L. Ed. 2d 412.
In Roth the trial court charged, 'The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.' In Alberts (Alberts v. California, heard and simultaneously disposed of in Roth v. United States) the test was 'whether the material has 'a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires." See Roth v. United States, supra, 354 U.S. at page 486, 77 S. Ct. at page 1310. In holding that both courts used the proper definition of obscenity, Mr. Justice Brennan, speaking for a majority of the court, stated, 'We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz: '* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *"
See 354 U.S. at page 487, note 20, 77 S. Ct. at page 1310. Further, 'in light of our holding that obscenity is not protected speech, * * * 'it is unnecessary * * * to consider the issues behind the phrase 'clear and present danger." Roth v. United States, supra, 354 U.S. at page 486, 77 S. Ct. at page 1310; see Schenck v. United States, 1919, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470; Dennis v. United States, 1951, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137.
We are here concerned with a more or less 'private' mailing, (op. cit. supra, 106 U. of Pa.L.Rev. at 237) in which the writer venting his spleen in an attempt to harm publicly declares (see United States v. Pratt, D.C.E.D.Mich., 1875, 27 Fed.Cas.No. 16,082, p. 611, at pp. 612-613)
that they had engaged in adulterous relations, speaks of poignant memories, of indecent exposures, of unnatural sex gratifications. While defendant's objective may have been to embarrass, intimidate, and to prevent prosecution, the main thrust of each message, although jejune in content, was to prurient interest, indicated a shameful interest in sex and went substantially beyond customary limits of candor in description.
At all events they presented a jury question under appropriate instructions. The jury by its discriminating verdict found that as to seven counts the prescribed tests of guilt were met; that proscribed material was used in a manner in violation of the statute. See and cf. United States v. Limehouse, 1932, 285 U.S. 424, 52 S. Ct. 412, 76 L. Ed. 843, and see Note 76 L. Ed. 845, at pages 848, 849, 851; Sunshine Book Co. v. Summerfield, D.C.D.C.1955, 128 F.Supp. 564, at page 568, affirmed D.C.Cir., 249 F.2d 114; One Inc. v. Olesen, 9 Cir., 1957, 241 F.2d 772; United States v. Hornick, 3 Cir., 1956, 229 F.2d 120, at page 122; United States v. Smith, supra; 41 Am.Jur., Post Office, §§ 116, 117; and see United States v. Roth, 2 Cir., 1956, 237 F.2d 796, at page 799 as to '* * * a feeling of disgust and revulsion'.
Defendant's motions will be ...