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UNITED STATES v. GUNDLACH

July 10, 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 was originally charged with thirty-two counts of violating 18 U.S.C. § 1461. *fn1" Upon motion of defendant, twenty-seven of the counts were dismissed by this court for reasons set down in United States v. Gundlach, 345 F. Supp. 701 (M.D. Pa. 1972). Of the remaining seven counts, the government dismissed three. The four counts left are the subject of this ruling. The defendant waived a jury trial on the four counts. Both sides signed a written stipulation *fn2" and submitted proposed findings of fact and law upon which this court could base its ruling.

 The defendant bases his motion for acquittal on four grounds: (1) the government failed to meet its burden of proof by not calling expert witnesses; (2) the failure to allege pandering in the indictment is a fatal variance barring pandering as an issue; (3) the material is not obscene as a matter of law, and (4) the defendant did not have the requisite scienter.

 FACTS

 The gravamen of 18 U.S.C. § 1461 is the use of the federal mails to send obscene, lewd, or lascivious materials, or to send information regarding ways to obtain such materials. The four counts in question involve one deck of playing cards, one book and two advertisements (one advertising each item). Count XIX alleges the wrongful mailing of the playing cards. The box is illustrated by four partial photographs of a man and woman engaged in sexual intercourse. The front face of the container reads, "Sexual Love, 55 illustrations in vivid color." Inside, one of the cards describes the photos as a "manual." Each card is an explicit color photograph of a position of sexual intercourse, the back being descriptive of what is occurring in the photo. The cards themselves double as ordinary playing cards. The bizarre juxtaposition of playing cards and a "sex manual" is unexplained anywhere on the product. There is a preface (also on a card signed by one Charles Rosenbloom, M.D., praising the "book" as "concise and helpful").

 Count XVIII is an advertisement for the cards. The relevant portions of the ad shows numerous sample photos with the following text:

 
"Real, authentic playing cards -- except this deck is really stacked! 54 swinging couples show you everything they've got -- in glossy full color. Nothing is hidden. Get these cards -- and you'll find your buddies lining up to play with you. Only problem is, how will you keep your mind on the game?" (Emphasis in original)

 Count XXI is a book entitled, "Animals As Sex Partners." The illustrated book claims to be a series of "Case Histories" of bestiality amongst women. The text is written in the first person and details sexual encounters between young girls and countless animals.

 Count XXII is an advertisement for the book. The ad is also illustrated and contains the following language beneath the headline, "SEX SLAMMERS":

 
"This is the first coming of the new hard-crusted super line of documentary books that are boldly unique! Each is an erotic shocker making others tame and childish by comparison! This is close-up, detailed writing that tells and S-H-O-W-S with words and pictures, the sex action like it really is! Not for the weak, these are graphic books for unflinching readers!"
 
* * *
 
"Kinsey revealed FOUR MILLION AMERICAN FEMALES will at one time or another in their lifetime make sexual love with an animal. This is the incredible documented book that tells you and shows you how they do it and why ! Fully revealed is the unbridled, blistering sexual urges that drive these females to bestiality. The illustrations are as stunning as the case histories are shocking." (Emphasis in original)

 The parties have stipulated that the ads in Counts XVIII and XXII were unsolicited and that based on the ads a postal inspector ordered the material in Counts XIX and XXI. However, the volume of advertising by the defendant is not at issue. Likewise, it appears from the physical evidence that the ads were sent in a single white envelope with no warning as to the nature of the contents. *fn3"

 I. EXPERT WITNESSES AND OBSCENITY

 Defendant has contended in oral argument and supporting memoranda that the government failed to meet its evidentiary burden. The only evidence before this court is the allegedly obscene material, the testimony of the postal inspector and books presented by the defense for comparison of another case. United States v. Stewart, 336 F. Supp. 299 (E.D. Pa. 1971), discussed infra. The postal inspector's testimony consisted simply of identifying the physical evidence and explaining his use of pseudonyms to obtain potentially unmailable material.

 In order to bolster his argument, defendant submitted a detailed examination of 16 cases regarding the government's affirmative evidentiary burden. The cases are persuasive only upon cursory examination. Each and every one involves an alleged obscenity violation where the article's obscenity was in question without any issue of pandering as raised in Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966). Each case involved violations based on the so-called "prurient interest" or "community standards" tests. One of the defendant's own cases points up the crucial nature of the distinction. In re Seven Magazines, 107 R.I. 540, 268 A. 2d 707 (1970), the Rhode Island Supreme Court dismissed convictions based on a "community standards" test, absent any expert witness. The court concluded that the government had a greater duty than to merely proffer the allegedly obscene matter. The court noted, however:

 
"In conclusion we observe that the constitutional issue would be different if in these cases there were evidence -- and we re-emphasize that there was none here -- of pandering as in Ginzburg v. United States . . . or of an assault upon individual privacy in a manner so obtrusive as to make it impossible to avoid exposure." (Citations omitted)

 The above conclusion of the Rhode Island Supreme Court underscores the inherent deficiency of defendant's entire line of cases on this matter.

 Defendant relies chiefly on United States v. Klaw, 350 F.2d 155 (2d Cir. 1965) for the proposition that expert testimony is needed in an obscenity prosecution. In Klaw, unlike the present case, pandering was apparently not an issue despite the fact that ads and materials were involved in an alleged violation of 18 U.S.C. § 1461. The Second Circuit rules that expert testimony was needed to aid a jury in determining the definitions of "prurient interest" and "community standards."

 However, in United States v. Wild, 422 F.2d 34 (2d Cir. 1969), cert. denied, 402 U.S. 986, 91 S. Ct. 1644, 29 L. Ed. 2d 152 (1971), reh. denied, 403 U.S. 940, 91 S. Ct. 2242, 29 L. Ed. 2d 720 (1971) the Second Circuit indicated that experts are not a universal requirement. In Wild the defendants were also charged with violations of 18 U.S.C. § 1461. The materials involved were illustrated, homosexually oriented publications. The defendants were convicted by ...


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