Opinion
No. 71-2584.
June 13, 1972. Rehearing Denied September 5, 1972.
Jonathan Bailey Lappen (argued), of Lappen Abelson, Beverly Hills, Cal., for defendant-appellant.
John L. Murphy (argued), Larry E. Butcher, Henry E. Peterson, Asst. Attys. Gen., Washington, D.C., Richard K. Burke, U.S. Atty., Morton Sitver, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before CHAMBERS, ELY and GOODWIN, Circuit Judges.
Norman Arno appeals from a conviction for mailing obscene matter in violation of 18 U.S.C. § 1461.
The government offered in evidence advertisements and magazines, playing cards, books, and movies which the indictment charged Arno with mailing.
The exhibits include the usual tasteless photographs of external human reproductive organs, but none appears to be any more offensive than those previously found not obscene by the Supreme Court. See, e.g., United States v. 392 Copies of Magazine "Exclusive", 253 F. Supp. 485 (D.Md. 1966), aff'd, 373 F.2d 633 (4th Cir.), rev'd, sub nom., Central Magazine Sales v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967). In the Central Magazine case, the material consisted of photographs of models in lewd positions with the picture centered on the exposed pubic area. In its per curiam opinion, the Supreme Court, citing Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), reversed the conviction. The same result was reached with regard to similar material in United States v. 56 Cartons Containing 19,500 Copies of Mag., 373 F.2d 635 (4th Cir.), rev'd, sub nom., Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967).
In light of the above-cited decisions of the Supreme Court and our own case of Pinkus v. Pitchess, 429 F.2d 416 (9th Cir.), aff'd per curiam, California v. Pinkus, 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970), we must reverse.
The material in our recent case, United States v. Miller, 455 F.2d 899 (9th Cir. 1972), is significantly more explicit than the exhibits in this case. The Miller exhibits portrayed various forms of sodomy with man and beast, among other activities. And the government's exhibits there were supplemented by expert testimony.
Reversed.