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UNITED STATES v. GUNDLACH

May 3, 1972

UNITED STATES of America
v.
Herbert L. GUNDLACH, d/b/a Superb Sales and H. & G. Enterprises, d/b/a Adult World Products Co.


Herman, District Judge.


The opinion of the court was delivered by: HERMAN

HERMAN, District Judge.

 Defendant Herbert L. Gundlach seeks dismissal of all 32 counts of an indictment charging him with illegal use of the mails to send obscene material, in direct violation of 18 U.S.C. § 1461. *fn1"

 Each count involves a separate mailing of particular articles to individuals in numerous locations around the country. Most of the counts involve the mailing of illustrated advertisements telling how, where and by what means certain publications and/or photographs might be obtained. A detailed examination of the material follows in the discussion of defendant's third ground for dismissal.

 I. Constitutionality of 18 U.S.C. § 1461

 Defendant alleges 18 U.S.C. § 1461 to be unconstitutionally violative of the First, Fourth, Fifth and Sixth Amendments. Relying on Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), defendant contends he has an implied right to use the mails for transmission of potentially obscene material. Stanley clearly recognized an individual's constitutional right to own, possess and read obscene material in the privacy of one's home. The Stanley decision, according to defendant, carries the clearly implied correlative right to acquire and transport such material.

 Subsequent to receipt of defendant's motion to dismiss the Supreme Court upheld the constitutionality of 18 U.S.C. § 1461 in United States v. Reidel, 402 U.S. 351, 91 S. Ct. 1410, 28 L. Ed. 2d 813 (1971). Ironically, the defendant had relied on the lower court's ruling in United States v. Reidel, C.D. Cal., Criminal No. 8458-HP. There the district court concluded that absent an unsolicited mailing to minors, 18 U.S.C. § 1461 was invalid. The Supreme Court reversed, expressly upholding the constitutionality of the statute even as it relates to a solicited mailing to adults.

 Prior to Reidel the Supreme Court had rejected an attack on the constitutionality of 18 U.S.C. § 1461. Roth v. United States, 354 U.S. 476, 493, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). In Roth the Court affirmed the statute's constitutionality, but without explanation. Reidel was an apparent attempt to clarify the constitutionality of § 1461 as it relates to consenting adults. For the purposes of the appeal, the Court in Reidel assumed, arguendo, that the material was obscene. Likewise, the Court accepted the premise that the recipients were adults who had solicited the material (402 U.S. at 353, 91 S. Ct. 1410).

 Since Roth the Supreme Court has expressly found obscenity to be outside the scope of first amendment protection. The Court in Roth concluded that "obscenity is not within the area of constitutionally protected speech or press" (354 U.S. at 485, 77 S. Ct. at 1309), cited with approval in Reidel (402 U.S. at 354, 91 S. Ct. 1410). With obscenity unprotected by the first amendment, the Court's ruling in Reidel clearly goes to the essence of defendant's attack on the statute itself.

 Similarly, defendant inappropriately relies on United States v. Thirty-Seven (37) Photographs, 309 F. Supp. 36 (C.D. Cal. 1970). The Supreme Court, on the same day as the Reidel ruling, expressly reversed the lower court, United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). The applicability of Thirty-Seven (37) Photographs as cited by defendant has therefore been rendered moot. A further discussion of defendant's contention is unnecessary. This court, therefore, rejects defendant's attack on the constitutionality of 18 U.S.C. § 1461.

 Defendant alleges two further grounds for dismissal of the indictment: (II) that no adversary hearing was held prior to arrest on the issue of obscenity vel non ; and (III) the material allegedly distributed in violation of § 1461 is not obscene as a matter of law. The matter of a pre-arrest obscenity hearing is a complex and unsettled one and a consideration of its merits should precede any determination of the obscenity of the material here in question.

 II. Pre-Arrest Obscenity Hearing

 The defendant sets before this court countless cases in support of its proposition that a pre-arrest hearing must be held on the issue of obscenity vel non. Although few of defendant's cases are tied to § 1461, defendant contends their logic compelling by analogy. Many of the cases can be readily distinguished because they involve forcible seizure of the material from the defendant's place of business. For example, defendant cited Delta Book Distributors, Inc. v. Cronvich, 304 F. Supp. 662 (E.D. La. ...


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