The opinion of the court was delivered by: CLARY
This case was previously tried before Judge Thomas A. Masterson sitting without a jury. After the close of testimony by both parties, however, Judge Masterson, before rendering a verdict, granted a rehearing. Subsequently, all counsel and the defendant agreed that this case should be decided by the undersigned on the record. With this history now recorded, we move to the consideration of the merits of the case as demonstrated by the entire record, including transcript, exhibits, and briefs submitted by both parties.
The defendant, William Kros, has been charged on two counts with violating Title 18 U.S.C. § 1461 which forbids, among other things, a knowing use of the mail for the delivery of "non-mailable matter".
More specifically, it is charged that the defendant on two separate occasions, i.e., August 18, 1967, and December 4, 1967, sent "obscene, lewd * * * (and) lascivious" films through the mail. At his arraignment on March 12, 1968, the defendant entered a plea of not guilty, and subsequently made a motion to dismiss the indictment on the grounds that the "* * * offense was perpetrated solely as a result of an entrapment * * *". He also made a motion to suppress at trial an allegedly involuntary statement made by the defendant after his arrest on December 8, 1967, but before his Commissioner's hearing. The defendant waived his right to a jury trial and, by agreement of counsel, both the defendant's preliminary motions were heard by the trial Judge.
During the trial, evidence relevant to each of these motions was elicited and at the conclusion of the trial, counsel were requested to brief the relevant law. For reasons discussed below, the defendant is adjudged not guilty.
In June, 1966, an inspector of the United States Post Office Department completed a membership application in the fictitious names of Mike and Elaine Laphan for the purpose of joining the Swingers Life Club, which is an organization composed of "* * * modern, broadminded people who share * * * 'special' interests and desires". See G-1-A Swinger's Life Application Form. Although the Swingers Life Club promotes a variety of social activities for its members, i.e., "* * * swinging club parties, dances and banquets", its most significant activity is the publication of the Swingers Life Magazine (hereafter referred to as "Swingers Life"), to which all members of the Club subscribe. This magazine is composed almost exclusively of a series of "advertisements" placed by members of the Club for the purpose of corresponding with and meeting other members of the Club. Both unmarried and married people sponsor these advertisements. The advertisements are arranged alphabetically by reference to the State in which the advertisers reside. Typically the ads are requests to meet others for "fun and good times", "swapping photos", etc. Most of the advertisements are accompanied by a photograph of the advertiser, usually depicting a semi-nude woman in a sexually provocative pose.
The Post Office Department decided to place an ad in Swingers Life because "* * * this magazine * * * (is) known to bring forth people who wish to sell obscene matters and to reply to ads in (the) * * * magazine", N.T. p. 12. Even though the Post Office contends that the magazine is nothing more than a vehicle for people desiring to trade in pornography and obscenity, the Department has not initiated any prosecution against the magazine itself, nor has it brought proceedings with respect to its mailing privileges. N.T. pp. 12, 14 and 156.
As new members of the Swingers Life Club the Laphans, i.e., the Post Office Department, were entitled to place an advertisement in all issues of the magazine to be published in the year following their joining the Club. The Post Office Department did place an advertisement which appeared in the magazine as #37 in the "Pennsylvania" section which read:
"Young attractive couple, anxious to exchange correspondence, experiences, photos. Love parties and believe three isn't a crowd. She is 28, 5' 5", 125 lbs, blond hair and blue eyes. He is 30, 5' 10", 170 lbs, brown hair and blue eyes".
On August 9, 1967, the Department received a letter signed by a certain Bill Hunter, with the return address of Bill Hunter, Box 4606, Philadelphia, Pa. 19127. It was undisputed that the defendant, William Kros, used the pseudonym "Bill Hunter", leased Post Office Box 4606 in 1965 and continued to use the Post Office Box until his apprehension in 1967. N.T. pp. 35-36, 111. His letter, marked G-2 and introduced into evidence at the trial, read:
I saw your ad and I was wondering if you would like to buy some 8 mm smoker movies. I have 5 reels that are in very good condition and I am asking $15.00 each. You can call me at home bet. 5 & 6 P.M. for further information.
If you don't want to buy films maybe we can get together anyway, if you would like.
This letter initiated a chain of correspondence between the defendant and the Post Office Department which eventually culminated in defendant's use of the mail to sell the films and his subsequent arrest. In order to resolve the entrapment issue, this correspondence must be reviewed in detail.
The Post Office Department responded swiftly to defendant's letter of August 9. In a letter inexplicably dated August 8, 1967, the postal inspector, adopting the alias of "George Schmetabak", penned the following response:
Thank you for answering our ad in Swingers Life. You said in your letter that you could be reached by telephone at your home, but you did not give your telephone number. It's just as well, since we are spending our summer vacation in N.J. right now.
Right now I can't afford to buy all 5 reels of film you offered, however, I am enclosing a money order for $15.00. Please pick out one reel of film you feel would be most enjoyable.
Hope to hear from ...