Full opinion text
FOX, District Judge. On May 24, 1960, the grand jury returned a nineteen count indictment charging the defendants with mailing or transporting in interstate commerce eight obscene books, in violation of Title 18 U.S.C. §§ 1461 and 1462. After protracted pretrial matters had been disposed of, the trial by jury began October 29, 1963, and ended December 10, 1963. The jury returned a verdict of guilty on five counts: 6, 10, 12, 13 and 14. The fury also reported that it was unable to agree on any of the other counts. At the close of the government’s proof, at the close of the trial and before sentence, the court denied defendants’ motions for judgment of acquittal, in arrest of judgment, and for a new trial. In the course of its rulings on these post-trial motions, the court referred to some of its opinions written during the trial. It is the purpose of this omnibus opinion to correlate certain written opinions by the court to the rulings made on the post-trial motions. The main issues raised by these three motions can be grouped as follows: 1. Constitutionality of statutes; 2. Presentation of the challenged books to the jury; 3. Double jeopardy, res judicata, estoppel; 4. Expert witnesses; 5. Comparative evidence; and 6. Sufficiency of the evidence. Other specific grounds relied upon in these motions require no expanded comment. The court’s opinion on these six issues follows: 1. CONSTITUTIONALITY OF STATUTES. In this area, defendants seek again to relitigate the issues before the United States Supreme Court in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, 1509. This court need not discuss the various themes of unconstitutionality now claimed by defendants. Further treatment of the constitutional issues is superfluous. 2. PRESENTATION OF THE CHALLENGED BOOKS TO THE JURY. After this issue was raised by the parties in the course of the trial, the court filed a memorandum opinion resolving that point. That opinion follows. However, one comment should be made first. During the course of the trial, defendants’ counsel, Mr. Fleishman, repeatedly misinterpreted the court’s use of the term “indicted books.” He argued that the books were on trial, and that the court was trying to censor the books. The court wants to make it clear, once and for all, that whenever the court referred to the eight books involved, in this case, as the “indicted books,” it did so only as a matter of descriptive convenience. In this opinion, we shall refer to the material as the challenged books. As the court frequently pointed out during the course of the trial, this court does not consider the books to be on trial; the defendants, as persons, are on trial. See Chief Justice Warren’s statement in his concurring opinion in Roth v. United States, supra, 354 U.S. page 495, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Minor changes have been made in the previously written opinions for the purpose of clarification. Footnote numbers have been changed to correspond with the omnibus opinion. At a pretrial conference in this matter held on Wednesday, October 23, 1963, the United States Government first proposed a procedure for submitting the books to the jury. At that time, the government proposed that the books themselves be submitted to the jury to be read by the jurors in the jury room, with instructions to read the books and not discuss them. This was suggested by the government in contradistinction to the predicted claim by the defense that the books should be read aloud in the court room. At that pretrial, defense counsel refused to stipulate to this procedure. At a continuation of the conference on pretrial matters, held October 28, 1963, the government reiterated its position as to this procedure. At that time the following conversation took place: “MR. FLEISHMAN: It is our view that the books should.be read and must be read to the jurors as part of the public trial since the books really are on trial, that they are charged with being obscene. “THE COURT: According to Chief Justice Warren, it is not the books that are on trial exactly, it is the individual and individual’s conduct and the books are a part of the picture of the individual’s conduct. “MR. FLEISHMAN: * * * The nub of the question here is that these books are obscene and since that is a crucial aspect, we do not believe that at a public trial, that is required and anything short of that would be a denial of a public trial. “THE COURT: Well, I won’t rule on that proposition at the moment either. I’ll consider it. Anything else?” The procedure for submitting books to the jury has varied over the years. At one time it was deemed proper to have the portions of an obscene character read to the jury by the prosecution, and the other portions essential to a proper understanding of what was read by the prosecution to be read to the jury by the defendants. Burton v. United States, 142 F. 57 (CCA 8, 1906). This procedure undoubtedly would be error today because of the decision in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, which held that each book must be considered as a whole. In another very early case concerning obscenity, the defendant claimed error, in that the court permitted letters under indictment to be taken by the jury to the jury room without first having been read to the jury or by the jury upon the trial. Winters v. United States, 201 F. 845 (CC A 8, 1912). The court noted that defendant made no objection to this procedure and that the defendant had never waived any objection to this procedure. The court also added that it would have been better practice to have the letters either read to the jury, or given to the jury and with each one of the jurors required to read them while the case was on trial. It is common procedure in criminal cases to permit papers or documents which are in evidence to be taken by the jury on their retirement. Since each of the books in the indictment has been admitted into evidence in this ease as an exhibit, it may at first appear that these general rules of evidence apply. It may be that in some cases, however, where the facts involved demand that the exhibits not be taken by the jury to the jury room, the general rules do not apply; and, therefore, the question is said to reside within the discretion of the trial judge. Little v. United States, 73 F.2d 861 (CCA 10, 1934); Buckley v. United States, 33 F.2d 713 (CCA 6, 1929); 12 Cyclopedia of Federal Procedure, Third Edition, Section 48.323; and Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (CCA D.C.1954). The courts have not been ignorant of the time factor questions involved in submitting matters to the jury for their consideration. In United States v. Rebhuhn, 109 F.2d 512 (CCA 2, 1940), the offered matter consisted of circulars which advertised books for sale. The court found the question on appeal to be whether books and the circulars were obscene; on appeal the defendant objected that the jury did not adequately examine the evidence and defendant relied upon the fact that the jury had deliberated only three hours. Judge Learned Hand in writing for the court, held that the time element was a question for the judge in deciding whether to grant a new trial, and found that the point was wholly without merit. It may be that the “book as a whole” test established by the Roth case, supra, would have forced Judge Hand to rule differently if that case were to arise now; but the fact is that this case is still authority for the proposition that the evidence may be submitted to the jury for their reading. The only other reference to this procedure in a great number of early cases dealing with obscenity is found in Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765 (1896). That opinion merely discloses that the article was read to the jury and there exists no comment in that case to add any assistance to the court’s determination here. On the other hand, a very few cases, Yudkin v. State of Maryland, 229 Md. 223, 182 A.2d 798 (1962), just as cryptically stated that prior to the close of the state’s case, the trial court sent the jury to the jury room to read the book in question. The clearest and most inclusive discussion of this issue known to the court is found in the opinion for the United States Court of Appeals for the Eighth Circuit in Alexander v. United States, 271 F.2d 140 (1959). The Alexander case involved a jury trial on two counts charging violation of Title 18 U.S.C.A. § 1462. The counts named certain books as being obscene: “The Hot Bod“The Lion’s Den“The Sex Factory;” “Becky McLane;” and “New Virginia Bell.” The statement of this case reveals that the Government first requested permission to read one of the allegedly obscene books to the jury. The request was denied, even after the Government had pointed out that the Both case, supra, required consideration by the jury of the book in its entirety. Counsel for the defendants moved that the two of the books be read to the jury. This motion was likewise denied. The court’s opinion in this regard is as follows: “Defendant’s further claim that the court committed prejudicial error in overruling his motion to have ‘Mr. Hot Bod’ and ‘The Lion’s Den’ read to the jury in open court is without merit. Both the Government and defendant had asked that the books be read to the jury. The books were in evidence as Government Exhibits and were taken into the jury room by the jury. The books constituted part of the evidence in the case, whether or not they were read to the jury in the court room. It was, of course, necessary for the jury to have knowledge of the contents of the books in order to properly arrive at their verdict. Whether such knowledge was obtained by their own reading of the books or by having the books read to them is a matter of no importance. The court instructed the jury in part as folloios: “ ‘Of course, you remember, in order to judge this matter, it’s necessary for you to judge the material as a whole. Of necessity that is going to mean that you examine particularly the five exhibits which have been introduced, “Mr. Hot Rod” and “The Lion’s Den,” and the other three pieces of evidence which are the principal pieces of evidence in this case. * * * “ ‘Give it a fair and honest consideration and take your time about it, and then return with the verdict that you think is fair and just in this matter.’ “We believe that under the peculiar circumstances of this case it rested in the sound discretion of the court whether or not the books should be read to the jury in open court, and that the court did not abuse its discretion in refusing permission to read the books to the jury. In Winters v. United States, 8 Cir., 201 F. 845, a case involving a prosecution for sending obscene letters through the mails, we held that the court’s refusal to permit the reading of the letters to the jury did not constitute reversible error. “In our present case the jury consisted of eleven men and one woman. Our examination of the books leads us to believe that the reading of books of the type here involved in open court in the presence of both men and women would likely have proven embarrassing to everyone present in the court room. Moreover, the reading of the books would have required considerable time that might more profitably be used by the court and its staff in disposing of other litigation. One of the books contained 183 pages and the other, 184 pages. The defendant has cited no cases, nor have we found any, to the effect that failure to read the contents of exhibits which have been admitted in evidence and are available for examination in the jury room constitutes prejudicial error. We can see no reason why the jury could not reach as complete an understanding of the contents of the books through their own reading of such books in the jury room as they could have obtained through the reading of the books to them in open court.” (Emphasis supplied.) Some of the difficulties pointed out by the court in the Alexander case apply in this case. For example, there are seven women serving on the jury in this case, including the alternates. While the court has been in session, other women have been spectators. This is not to imply that the embarrassment of reading out loud should conclusively foreclose that reading; it is merely one of the factors. The court’s point in the Alexander case that the reading of the books would require considerable time which might more profitably be used by the court and its staff, is also relevant to this case. It is difficult to predict exactly how much time would be saved by reading the books out loud, or by having each juror read each book silently, for this depends largely upon the reading ability of the reader, or each individual juror. However, to relieve the court for time to consider all the issues yet involved in this case, is a desirable result. It likewise affords counsel additional time to prepare memorandum briefs on issues before the court, or issues anticipated to come before the court. The clear import of the “book as a whole” test set out in the Roth case, supra, is that the book necessarily must be read from beginning to end, and in a normal fashion, in order to ascertain its character. The court does not think it could fairly be claimed that these books were intended to be read out loud; to the contrary, they were intended to be read silently by the readers. Reading out loud, therefore, would be inconsistent with the nature of the book, and may under a particular set of circumstances, be unfair to one side or the other. It is also patently clear that each individual reader reads at his own rate of speed. The variation, then, between the speed of the person reading the book out loud and the speed of each individual juror would also have its effect upon each juror’s comprehension of the true character of the book. Some readers, because of their abilities, must necessarily stop and reread in order to understand the context of a passage. This would be virtually impossible if the books were read out loud. The result might well be that by following the person reading the book out loud, the very slow reader would be able to remember or catch only the allegedly obscene parts. This certainly would work an injustice on the defendants. The books involved have been admitted as evidence and marked as ex•hibits in this case. The party offering them as exhibits has chosen not to read the exhibits in their entirety to the jury. From the foregoing discussion, there is no compelling reason why the court should require the party offering the exhibits to read the exhibits to the jury. There are two alternatives as to the time when the jurors should be allowed to read the books. The books in the case of Alexander apparently were read by the jurors at the close of the trial; while the books in the Yudkin case were read at the close of the state’s case. The latter procedure is more logical in the opinion of this coui't. The books are an important part of the evidence submitted by the Government in proof of its case. While these books are exhibits and, therefore, before the jury, and while the Government’s case would not be subject to dismissal if they were not read at this time, since they are exhibits this court believes that under proper guidance the jury can best perform its functions in this case by reading them at the close of the Government’s case. A few of the specific reasons why this is the best procedure to follow are: The jury can best understand the testimony of any subsequent witness on defense as that testimony may relate to more difficult issues involved as to the books themselves. Also, the jury would be in a much better position to understand the rather intricate instructions involved in a case of this nature if they have read the material before the instructions. The procedure in the Yudkin ease and that proposed here is actually the most common procedure for placing an exhibit before the jury. The party offering the exhibit may request that it be tendered to the jury; once this is done, all activity is usually suspended until the jury has an opportunity to examine the exhibit. Defendants apparently fully rest their objection to any procedure other than reading the books out loud on the grounds that this would effectively deny them of a public trial, in that the books, being important evidence, would be submitted to the jury outside the presence of the defendants. Without passing upon the merits of this claim, and doing nothing more than noting that defendants have not given the court any authority to support this claim, the procedure this court intends to follow fully satisfies the objection of the defendants. The Government has a sufficient number of copies of certain books so that each juror may have one of each book to read. The identity of these copies introduced for reading only with those copies introduced as exhibits in the course of the Government’s case, is supported by the evidence of copyrights for each of the copies, showing no new matter added to these publications. The evidence of the copyright is by itself adequate sanction to allow a sufficient number of the books into evidence for the purpose of reading by the jury. For those books where problems arise as to identity, either by virtue of lack of copyright, or some other problem, the court will rule specifically at the time that book is presented for reading. The books in this case will be given to the jury immediately before the Government rests its case. The jurors will remain in the court room and read each of the books silently pursuant to the court’s, instructions. The defendants and their counsel shall' remain in the court room at the same time. The court’s bailiff will be available so that he may administer the jury’s needs. The court reporter shall remain in the court room at all times while the books are being read, so that any communication which may be made shall be properly recorded. The Judge shall also remain in the court room. The trial continues in all respects in-open court in the presence of the defendants, the Government, the Judge, and the jury. All objections of the defendants, are answered and overruled. This is the end of the court’s memorandum opinion on the presentation of the books to the jury. 3. DOUBLE JEOPARDY, RES JUDI-CATA, ESTOPPEL. Defendants’ claim in their motions,, and many times throughout the trial,. raising this issue, can be summarized in quoting their motion for judgment of acquittal, Count 4, f[2: “The lodged and filed exemplified copy of Count “One” of the prior indictment which names The Black Night and the exemplified copy of the jury proceedings reflecting a jury acquittal on said Count “One” in the case of United States v. Aday in the United States District Court for the Southern District of California, Northern Division, entitles defendant Aday to an acquittal pursuant to the command of the Fifth Amendment to the United States Constitution prohibiting double jeopardy and the denial of due process of law and pursuant to the principles of res judicata and estoppel.” Counsel for the defendants, Mr. Fleishman, persistently during the course of the trial, tried to convey the impression that the book, The Black Night, had been found to be not obscene. This finding was then said to be binding in some way upon this court and jury. First, Mr. Fleishman himself has contradicted this assertion. In his affidavit in support of the motion to dismiss the indictment, filed March 30, 1962, he said: “The jury return (sic) a verdict of not guilty on the said first count, the prosecutor submitting only the book The Rambling Maids by Betty Short to the jury.” By his own sworn statement, it is clear that the jury did not even consider the book, The Black Night, in the District Court case in California. Secondly, defendant Aday was not charged with the same offense in the District Court in California as that with which he is charged in this case. Besides the fact that the book, The Black Night, was never submitted to the jury, the indictment in that case charged transportation of that book to different places on different dates than the indictment in this case. See 18 U.S.C. § 3237(a). If the book had been submitted to the jury, and if the jury had acquitted defendant Aday on the count naming the book, The Black Night, it would still be impossible to know whether or not the jury based its acquittal upon the fact of non-obscenity. It is as reasonable to assume that they may have acquitted defendant Aday on grounds of lack of scienter, or non-transportation. Defendants’ claim here, erroneous in the premise, is no more than a repetition of their theory that it is the books which are on trial, and not the defendants. However, as Chief Justice Warren said in Roth, supra: “It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.” In fact, the statutes involved in this case contemplate that a defendant may be acquitted for sending a book to one place, and found guilty for sending the same book to another place. Footnote 30 to the majority’s opinion in the Roth case, supra, stated: “It is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U.S. 486, 499-500 [17 S.Ct. 375, 379-380, 41 L.Ed. 799].” It became apparent to the court during the course of the trial, in light of the above facts and law, that defendants had one purpose only in persisting on using the Fresno case material — that was to confuse the jury on matters of law to such an extent that they would believe the claimed acquittal of the books in the Fresno case ipso facto demanded an acquittal of the books in the present case. Defendants’ counsel was relentless in trying to state to the jury that one of the books here challenged was acquitted by another jury. When pressed on this issue, counsel digressed, then glossed over the issue, then finally admitted that no book in this case was presented to the jury for its consideration in its final deliberations in the Fresno case. The same purpose was pursued in defendants’ insistence that the blurbs in the challenged books go to the jury. After the Fresno trial experience, defendants anticipated certain defenses and took steps to build these defenses or traps into their publications. The defendants drafted blurbs and placed them in their books. When the books were presented to the jury, the court was faced with a well-planned dilemma: should the court submit such misleading self-serving statements to the jury on the theory that they are a part of the books as a whole; or should the court risk error by removing them from the books? The court resolved the doubt in favor of defendants and allowed the books, including the blurbs, to go to the jury. However, in light of the total plan of defendants in this case, which was apparent after all the evidence was in, the better rule would have been to remove these blurbs, since reason commands that the book as a whole consists of the story from page one to the end. The blurbs are unrelated, prejudicial, improper, misleading, and should be removed. To do otherwise is to serve the perverted objectives of the defendants. It places before the jury excerpts and parts of other works taken out of context for comparison purposes, and it gets before the jury defendants’ interpretation of the works in printed form as exhibits which may be taken into the jury room during the jury’s deliberations. Such techniques are designed, first, to circumvent the requirement of the Roth rule, which is to consider “material as a whole”, and, secondly, to dilute or defeat the rule which requires the jury to take the law as given to them by the Judge, and from no other source. 4. EXPERT WITNESSES. The court’s opinion filed during the course of the trial on the use of expert witnesses in this case follows. At a pretrial conference held in this cause on October 23, 1963, this court in commenting upon the use of expert witnesses, ruled that if expert witnesses were allowed, they would be limited in number to two on each side. At a continuation of that conference on October 28, 1963, the defendants represented to the court that they had four expert witnesses whom they sought to use. The court’s final ruling on the use of expert witnesses and the law relating to such issue are contained in this opinion. It is clear to the court, and indeed does not appear to be contested by the parties, that no expert testimony will be allowed as to any ultimate issues involved in this case. The general rule relating to expert testimony applied to this case demands that there be no expert testimony on the issue of “obscenity,” “appeal to prurient interest,” and “dominant theme” — -with perhaps some minor qualification as to dominant theme, which will be gone into later in this opinion. United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273., 79 L.Ed. 617; Farris v. Interstate Circuit, 116 F.2d 409 (CCA 5, 1941); United States v. Sauls, 65 F.2d 886 (CCA 4, 1933); Coca-Cola Co. v. Joseph C. Wirthman, 48 F.2d 743 (CCA 8, 1931); and Standard Fire Extinguisher Co. v. Heltman, 194 F. 400 (CCA 6, 1912). The Government, on page 32 of its trial brief, concedes that expert testimony as to the literary value of the challenged books is admissible. Therefore, in accordance with the defendants’ memorandum on their witnesses, the only question remaining is whether or not expert witnesses may be used to testify as to “contemporary community standards.” The cases which have discussed the issue of expert witnesses in obscenity cases present at best a dim beacon for the court’s guidance. It may well be that the opinion of Judge Learned Hand in United States v. Levine, 83 F.2d 156 (CCA 2, 1936), will ultimately be recognized as the proper statement of the functions of the jury in an obscenity case. The determination of all the issues in an obscenity case is properly for the jury according to Judge Hand. In his opinion, he says: “As so often happens, the problem is to find a passable compromise between opposing interests, whose relative importance, like that of all social or personal values, is incommensurable. We impose such a duty upon a fury (omitting citation), because the standard they fix is likely to be an acceptable mesne, and be- • cause in such matters a mesne most nearly satisfies the moral demands of the community. There can never be constitutive principles for such judgments, or indeed more than cautions to avoid the personal aberrations of the jurors.” (Emphasis supplied.) Judge Hand recognized, however, that certain factors must be taken into consideration when the book is weighed by the jury: “ * * * if it is old, its accepted place in the arts must be regarded ; if new, the opinions of competent critics in published reviews or the like may be considered; what counts is its effect, not upon any particular class, but upon all those whom it is likely to reach.” The demands of the terms of the statute alone led Judge Hand to the conclusion that the jury in an obscenity case plays a very distinct role. “Thus ‘obscenity’ is a function of many variables, and the verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premise, but really a small bit of legislation ad hoc, like the standard of care.” In support of the interpretation that Judge Hand’s opinion was intended to be a finding that the elements of an obscenity case are peculiarly for the jury, at the close of his opinion he made the following remarks: “On the other hand it is reasonable to allow in evidence published reviews of qualified critics — quite another thing incidentally from expert witnesses at the trial — for such evidence does not lead far afield and is rationally helpful, though in the end it is the jury who must declare what the standard shall be.” (Emphasis supplied.) In a customs case shortly after United States v. Levine, supra, Parmelee v. United States, 72 App.D.C. 203, 113 F.2d 729 (D.C.1940), the court felt that contemporary community standards, or the limits of candor, could best be established with the aid of expert opinion. The court said: “But when we attempt to locate that critical point in the situation of the present case, we find nothing in the record to guide us except the book itself. The question is a difficult one, as to which the expert opinions of psychologists and sociologists would seem to be helpful if not necessary.” It must be noted, however, that contrary to the Levine case, supra, the Par-melee case was not tried before a jury, but turned on the decisions of a customs official. There may be a particular need for such testimony to act as a safeguard in cases where a single individual is charged with fhe duty of determining obscenity. It is difficult to see how expert testimony can help the jury in arriving at a determination of the morals of the community. Justice Stewart (then Judge) for the Court of Appeals for the Sixth Circuit, in Volanski v. United States, 246 F.2d 842, 1957, ruled that the admission of expert testimony under particular circumstances was error. In that case a psychologist had been allowed to state his opinion as to the effects of the indicted material upon juveniles. The court’s ruling in regard to the error committed in such an admission relates generally to the fact that the test is no longer limited to a particular group, such as juveniles. The opinion, however, is important for other reasons. Justice Stewart then quoted extensively from United States v. Levine, supra, to the same effect as this court has in its opinion above. The Volanski case adopted with approval the position that the jury is the most acceptable mesne and that it is the jury which most nearly satisfies the moral demands of a community. Judge Prettyman in Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204 (D.C.C., 1961) had occasion to comment upon this same issue. Without analyzing the difficulties that exist in the issue of expert witnesses, Judge Prettyman assumed they could be used, but went on to find that they had not been properly qualified. He stated in his opinion as-follows: “Appellant called as witnesses two psychiatrists and two sociologists and sought to have them testify as to the contemporary community standard, but they failed to qualify as experts on the subject and the court refused to allow them to express opinions on the subject. Obviously the trial judge was correct upon the point. To be permitted to express an opinion as an expert, a witness must first qualify as an expert on the subject at issue. There was no showing or proffer to show that these witnesses did in fact know or had reliable means of learning what those standards were.” (Emphasis supplied.) This points up the difficulty in securing an “expert” on contemporary community standards, or the limits of candor, in the community, or the morals of a community. The latest federal decision outside the Supreme Court which had before it this issue was Kahm v. United States, 300 F.2d 78 (CCA 5, 1962). The question was raised when defendant complained that the Government had not called any expert witnesses in the presentation of its main case. That court ruled, as this court has already ruled, that there was no requirement for the Government to do so. The court in Kahm went on to discuss the opinion in Smith v. People of State of California, 361 U.S. 147, at pages 160 and 161, 80 S.Ct. 215, 4 L.Ed.2d 205, where Mr. Justice Frankfurter dwelt considerably upon the need for expert witnesses in these cases. However, the Kahm court was not persuaded by Justice Frankfurter, since in dictum the court said: “We think it may fairly be said that no amount of testimony by anthropologists, sociologists, psychiatrists or psychologists could add much to the ability of the jury to apply those tests of obscenity to the materials here present.” (Emphasis supplied.) The Federal District Courts have had fewer occasions to comment extensively upon this issue. In United States v. Two Obscene Books, 92 F.Supp. 934 (D.C.N.D. Calif., 1950), the issue arose when the claimant in a libel action motioned for a ■commission to take the depositions of nineteen persons alleged to be experts in the field of literary criticism. The experts were to be asked questions relating to their representative opinions of the two books involved from the standpoint of value as works of literature. The court said: “There is no direct authority for the proposition asserted by claimant that the estimates or criticism of so-called literary experts are relevant in a proceeding under 19 U.S.C.A. § 1305. True, there is reference in United States v. One Book entitled ‘Ulysses,’ supra [2 Cir., 72 F.2d 705), and in United States v. Levine, 2 Cir., 83 F.2d 156, to evidence of the opinions of qualified critics. These statements, however, were purely dicta, as in both cases all that was ever submitted to the lower ■court or before the higher court were the books themselves. “Obscenity is a question of fact which can be determined by the •court or the jury by reading the books. Salacious or filthy literature or pictures cannot become clean and wholesome upon the mere statement of some alleged or so-called •critic. “In my opinion, the issuance of a commission or the taking of the depositions of the 19 persons named in claimant’s motion is unnecessary and unwarranted. Such testimony as might thereby be elicited is wholly irrelevant and immaterial.” (Emphasis supplied.) The attack upon the rule advocated by Judge Hand in the Levine case, supra, was sidestepped by the parties in United States v. 4200 Copies International Journal, 134 F.Supp. 490 (D.C.E.D.Wash., 1955), where the experts who were used in that case were four “non-experts”. The defendant called two women, one a mother and the other a grandmother, who certainly are not considered to be experts in the sense presently before this court, but who were, however, both members of a nudist organization; and they testified that there was nothing objectionable in the challenged material. On the other hand, the Government introduced two average housewives, “representative of the average person of the community,” and they found that the publications were indecent and obscene. The use of this type of expert is more consistent with the statement of Judge Hand in the Levine case, supra; but, query: how much does this “aid” the jury? The court in Upham v. Dill, 195 F.Supp. 5 (D.C.S.D.N.Y.), quoting Judge Moore in Grove Press, Inc. v. Christen-berry, 276 F.2d 433 (CCA 2, 1960), specifically set out the dilemma raised by comparing the Levine position with the position in Parmelee. For example: “Both the ‘average man’ and ‘contemporary community standards’ are factors in the formula we are directed to apply. Individual judges should hesitate to speak for the ‘average man’ and hesitate to define ‘contemporary community standards.’ The ideal solution to the problem, in our judgment is a jury trial. What better way can this book be tested than by the unanimous opinion of twelve jurors selected at random from a large metropolitan community. In such a way the plaintiff will not have to be relegated to the opinion of a single judge who would have difficulty determining what the ‘average man’ would think, and what ‘contemporary community standards’ are. It also would provide a forum for plaintiff’s expert literary critics to voice their opinions and for the government to call theirs. Such procedure is the closest approach to, or approximation of the ‘average man.’ The experience and observations of . twelve jurors picked at random will come closer to an appraisal and understanding of ‘contemporary community standards.’ ” (Emphasis supplied.) Some of the state courts have treated more extensively the use of expert witnesses than the federal courts. The opinions do not help, however, in resolving some of the difficulties involved in the use of expert witnesses, but generally there is a statement only that expert witnesses are allowable, or they are proper. In Commonwealth v. Isenstadt, 318 Mass. 543, 62 N.E.2d 840 (Mass.1945), the Supreme Court of Massachusetts found that exclusion of expert testimony was not error. The court said: “The principal matter about which expert opinion was sought was nothing more than the reaction of normal human beings to a kind of stimulation which is well within the experience of all mankind. Since the inquiry relates to the probable effect upon the general public who may read the book, there is reason to believe that a jury being composed of men drawn from the various segments of that public, would be as good a judge of the effect as experts in literature or psychiatry, whose points of view and mental reactions in such matters are likely to be entirely different from those of the general public.” (Emphasis supplied.) The present status of the law in the State of Massachusetts is not clear in the light of Attorney General v. The Book Named “Tropic of Cancer”, 345 Mass. 11, 184 N.E.2d 328 (1962), where the court recognized the significance of expert testimony on the issue of literary value. The finding of the Maryland state court in the case of Yudkin v. State, 229 Md. 223, 182 A.2d 798, that refusal of expert testimony required reversal was based upon the statement of Justice Frankfurter in Smith v. People of State of California, supra, and the value of the Yudkin case therefore stands or falls with the persuasiveness of Justice Frankfurter. That the difficulties subordinate to the issue of the use of expert witnesses have-not been resolved is attested by the discussion of Professor Kalven in his article, “The Metaphysics of the Law of Obscenity,” Minnesota Law Review, 1960, University of Chicago Press. Professor Kalven recognizes that expert testimony relating to the literary value of a work is undoubtedly helpful, but he points out, and this court so recognizes in this case, that the court often knows the literary value, or the lack thereof, of a particular work. The real problem comes when you try to use expert testimony to show the prevailing moral standards of the community. As to that use, it is not at all clear what expertise is available. Professor Kalven finally concludes that perhaps the only experts on the issue at hand are the jury, as Judge Hand pointed out in United States v. Levine, supra, and further states that it is possible that the logic of Justice Frankfurter leads to the same conclusion. In his book, “Censorship; Government and Obscenity,” at Page 211, Father Terrance Murphy adds an additional twist to the difficulties faced in this case. He states: “Community standards are tied to the average person and prevalent literary critics are not representative of the average reader. Information on the reading habits of the community would be more reliability (sic.) by obtaining from distributors than from literary critics.” (Emphasis supplied.) This position apparently overlooks the fact that throughout history a great number of books which were held to be obscene sold in great numbers and it is impossible to determine, as Judge Hand pointed out in United States v. Levine, supra, what it is that caused each buyer to buy. The court is faced with decisions which hold that the jury alone determines the “contemporary community standards”; that experts are “helpful or necessary”; or that experts are required as a matter of law. As the court pointed out at the beginning of this opinion, it may be that after a period of experience in the courts with the unresolvable difficulties on the issue of expert testimony in this regard, that the opinion of Judge Hand in the Levine ease, supra, may ultimately prevail. Strongly bearing upon the use of experts in this case are the books themselves. The court has read each book in its entirety. These books are produced solely for “commercial exploitation.” Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (Chief Justice Warren concurring). The single purpose of these books is to nourish the erotic fantasies of those into whose hands they fall. It is difficult to see any “social redeeming value” (see Roth, supra) in these books unless one unrealistically maintains that there is a value in an appeal solely to eroticism. Sex is here portrayed in multitudinous forms, with great variety and vigor. The nature of the sexual acts described and the circumstances surrounding them graphically and autoptically emphasize the obscenity of the books. The intensive, unrealistic, insulting portrayal of sex in these books compels the court to conclude in its own mind that there is more than a probability that any jury could find these books obscene — and if it were an issue, could find them to be hard-core pornography. These books themselves are before the jury and may reasonably be said to be the sole relevant evidence of their obscenity or non-obscenity. United States v. Two Obscene Books, supra; United States v. One Book entitled “Ulysses," supra; United States v. Levine, supra; Kahm v. United States, supra; and Womack v. United States, supra. If the court were to hold now that the books are so self-evident in their obscenity that the jury does not need the aid óf experts, the court would not be without authority. In Womack v. United States, supra, the court made this observation: “If a piece of cloth is bright red, and the cloth itself is in evidence, no testimony, lay or expert, would be admissible to show the cloth is blue. Such testimony would be immaterial, of no probative value, upon the issue of the color. Its admission would be a waste of the court’s time, confusing, prolonging, and tending to make a mockery of the processes of justice. * * * In the case at bar the photographs were filthy, self-evidently and indisputably. We think that photographs can be so obscene — it is conceivably possible that they be so obscene — that the fact is incontrovertible.” (Emphasis supplied.) The court in the Kahm case recognized the dissent of Justice Frankfurter in the Smith case. It is reasonable interpretation to find that the Kahm case is authority for the fact that Justice Frankfurter’s position is inapplicable in a case where obscenity of the books is self-evident. There is opportunity then for a judge to rule that the nature of the books forecloses the use of expert witnesses. See Commonwealth v. Isenstadt, supra (headnote 20); Kahm v. United States, supra; and Womack v. United States, supra. Justice Frankfurter in the Smith case becomes the pivotal authority for the defendants; but even Justice Frankfurter did not make an attack on the duty of the jury as Judge Hand viewed it. In the appellant’s jurisdictional statement in the Smith case, Page 30-31, the following proposition was before the court: “Apparently, the court below assumed that the trial judge was the ‘community,’ and, as such, alone equipped to determine the ‘appeal to prurient interest’ of the writing. But, this view essentially erases the factual issues, and turns the question of obscenity to be decided by the court, or by the jury, into a matter of ad hoe legislation only.” The fact that this was not faced by any of the Justices when the opportunity was presented, particularly Justice Frankfurter, weakens the authority of that case as support for defendants’ contention in this case. Justice Brennan, who wrote the majority opinion in the Roth case, supra, sharpens the concept of jury duty in obscenity cases in his dissent in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). He said: “The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury, trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an. appraisal of material according to the average person’s application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press.” At Page 448 of 354 U.S., at page 1331 of 77 S.Ct., 1 L.Ed.2d 1498. (Emphasis supplied.) Justice Brennan gives weight to the opinions in the various cases involving non-jury trials where experts were felt to be necessary. Compare Parmelee v. United States, supra. It is mainly in deference to the opinion of Justice Frankfurter in the Smith case, supra, and by implication of the opinion of Justice Harlan in the Smith case, supra, and as a matter of grace, that the court in this case is going to allow the use of expert testimony. As the court has pointed out, such use will be related to testimony concerning the literary worth of the challenged books and the contemporary community standards. The court will not relax the fundamental requirements of evidence. This court will insist, as the trial judge did in the Womack case, supra, that the experts used in this case be qualified to testify in the areas of their claimed expertise. The facts upon which an expert in this case bases his opinion must be clearly established. The foundation for any expert testimony must be laid in such a manner as to satisfy the court that the expert is an expert in either of these two areas. If any of the expert witnesses has been permitted to testify upon qualifieation, the court intends at the conclusion of the case to give a clear and specific charge relating to the value of expert testimony and the reliance of the jury upon that testimony. As pointed out hereinafter on the use of other books for comparison, to aid the jury in establishing contemporary community standards, the witnesses used in the comparison are required, as part of the foundation, to convince the court that the book compared is reasonably identical to any of the challenged books. This may raise questions relating to the basic facts behind the dominant theme of the books used for comparison, but it does not raise a question as to the dominant theme of any of the challenged books, and the testimony of a witness in that regard is only for the purpose of laying the foundation for the admission of his testimony. It does not mean that the expert can testify as to what he thinks is the dominant theme of the challenged books. The dominant theme of the challenged books is an ultimate issue of fact for the jury, and they are to decide that without the aid of expert testimony. Only the facts may be referred to in comparison. In accordance with this court’s opinion, expert testimony will only be allowed on two issues — literary value and contemporary community standards. In order to prevent unnecessary cumulative expert testimony after considering the nature of the expert sought to be used, as stated by the defendants in their memorandum, the court will permit the use of three expert witnesses by each side. This is the end of the memorandum opinion on the use of expert witnesses as written by the court during the course of the trial. It is to be noted the parties were advised early, before and during the trial, as to the number of expert witnesses the court would permit each side to use. Defendants insisted on presenting a fourth alleged expert witness, Dr. Martha Boaz. According to the defendants, this expert was crucial to their case because of her specialized knowledge. In limiting the parties to the use of three expert witnesses the court did not choose which three persons were to be used as witnesses. Defendants chose to call three expert witnesses other than Dr. Boaz. All three of these experts testified to substantially identical facts. A scanning of the testimony of defendants’ experts, clearly demonstrates, that after defendants’ witness Robert Kirsch testified, the testimony of witnesses Edward L. Galligan and Guy Endore was grossly cumulative. Their “best prepared” expert witness, in the words of defendants’ counsel, Mr. Fleishman, “world renowned” author Guy Endore, added nothing new to the testimony of Kirsch. Defendants’ counsel could have called Dr. Boaz as one of their three expert witnesses. The choice was his to make. He elected not to call Dr. Boaz. The problem of expert witnesses on contemporary community standards is new and relatively undeveloped. After a minimal inquiry into the qualifications of the experts offered by defendants in this case, the court again resolved all doubts in favor of defendants and permitted these witnesses to testify before the jury on contemporary community standards. The experience of the court in this trial throws considerable light upon the complete problem. The position of defendants and their experts became clear at the conclusion of their testimony. Witness Galligan, for example, testified that he was opposed to any obscenity laws which were directed at material both patently offensive and which appealed to prurient interest. He stated he would substitute the “clear and present danger” test. This position is contrary to the rule of law as declared by the United States Supreme Court in the Roth and the Albert cases. It was a studied attempt to put before the jury expertise on what the law should be and not what the law is. Once erroneous impressions are implanted in the minds of the jury and then cultivated by repetition, prejudicial consequences may result, which may not be removed by the judge’s instructions to the jury. This may especially be the case where incorrect, or out-of-context interpretations of law, are printed as blurbs in books which are also exhibits in the case; or when presented to the jury in the form of cumulative allegedly expert testimony, but which are in fact fallacious propositions of law, or standards, as the alleged experts desire them to be. In this case, by giving defendants more protection than they were entitled to under the law, the. jury heard advocates and not experts. These advocates attempt to make straight the way for the free flow of obscenity. Witness Kirsch was an advocate of his special interests as an editor of the books section for the Los Angeles Times. According to his testimony, as a book reviewer he sets the pace for his paper’s readers. He is also an author and a professor. He testified he had never made a study of contemporary community standards, but said they were a necessary part of his work as a literary critic. He admitted that he never reviewed the challenged books, but he had no difficulty in asserting that they were within contemporary community standards. His opinion was clearly influenced by his personal, academic, economic and philosophical interests. Author Guy Endore is clearly an advocate of unlimited license to write, publish, and distribute in disregard of obscenity laws. He testified that he is now writing a book which may test the limits of the obscenity laws. Such an “expert” could hardly be expected to objectively approach contemporary community standards in any way except one favorable to his own position. At the conclusion of all the expert testimony, it was clear that without laying a better foundation as to the qualifications of witnesses, experts on contemporary community standards are too easily what one wishes them to be. If no more is required than that the proffered witnesses have certain experiences in the literary field, it becomes only a question of finding the experts with a philosophy favorable to the cause of the party offering the witnesses. The testimony of the experts in this case truly did not reflect the standards of the community; their testimony may reflect the standards of certain professors, book reviewers, and types of authors, with particular ideas about unlimited license to write, publish and distribute material in the area of obscenity. The contemporary standards of the community, however, must be found elsewhere. Thus, the battle of experts becomes the battle of ardent advocates for their chosen causes; their positions are multiple final arguments rather than factual expert opinion in a proper evidentiary sense. In the last analysis, it is historically clear that the common conscience of the community, at any given time, is best expressed by the accepted fact finding institution, the jury. Again, as Judge Learned Hand expressed it, the jury executes a bit of ad hoc legislation. The use of expert testimony and comparative material is circumscribed by the requirement of the Roth rule that the “dominant theme of the material, taken as a whole, appeals to the prurient interest.” To clearly and fairly apply this rule, both challenged material and comparable material must be considered as a whole. Thus, the practical limits of a trial impose the necessity to restrict the scope of the jury’s inquiry into comparable material, so that the jury may be able to consider each book as a whole, of all material in evidence. The court considered this problem and before it resolved the guidelines for presentation of expert- testimony and comparable material, ordered that neither of the parties mention the names of any other material in the presence of the jury until the court resolved the method by which comparable material should be presented to the jury. 5. COMPAEATIVE EVIDENCE. The court’s opinion delivered during the course of the trial on the use of comparison books is here set out in full. One of the most difficult questions presented in this ease is whether or not books of an allegedly similar nature to those challenged, and generally available on the market, may be introduced into evidence. Defendants seek to have this evidence introduced in support of their claim that the challenged books do not go beyond the customary limits of candor. The court is convinced that certain types of books can be eliminated from consideration as a matter of law, in that they are not in any way, shape or form similar to the books challenged in this case. This group of books is composed of the following non-exclusive descriptions: medical treatises; medical text books of any nature; scientific treatises or text books of supplementary material in the area of sociology, psychiatry and psychology; books dealing in a technical way with marriage and the family, and sexual relations; works recognized as “classics” or of an undeniable literary value; and magazines. It is readily apparent that due to the test which must be applied in these cases, books of the nature listed above cannot reasonably be said to be similar in any way to the books challenged in this ease. The test is that the challenged books must be considered as a whole. The court has read the books under challenge in this ease. As a matter of law, the court finds no difficulty in separating the books involved in this case from the books above described according to the nature of the work. See United States v. Eoth, 237 F.2d 796, 819-820 (CCA 2, 1956). The more difficult issue for the court to determine is whether any books allegedly similar or not may be introduced as evidence in this case on the issue of contemporary community standards. The reasoning applied by the courts which have previously faced this difficulty has been varied. In Burton v. United States, 142 F. 57 (CCA 8, 1906), the defendants sought to introduce evidence that the book challenged was not obscene, and to support their position claimed that portions of the challenged text were extracts from standard medical works. The trial court excluded the evidence and it was affirmed on appeal. The court through Judge (later Justice) Van Devanter, said: “The book itself was in evidence. It was not a communication from a doctor to his patient, nor a work designed for the use of medical practitioners only. There was no dispute as to its contents, nor was there any difficulty in understanding the acts described and the ideas conveyed. If these were calculated to deprave the morals of the reader by exciting sensual desires and libidinous thoughts, the book was obscene, even though each of the matters sought to be shown was true.” (Omitting authorities.) (At page 63 of 142 F.) A problem involving similar considerations faced the court in United States v. Levine, 83 F.2d 156 (CCA 2, 1936). The jury in that case found three matters to be obscene, two of them being books. The trial judge refused to allow in evidence a list of purchasers of the books, even though the list contained the names of well known persons. Judge Learned Hand affirmed, saying: “Such a list taken alone told nothing of the standing of the works in the minds of the community; even respectable persons may have a taste for salacity. Obviously it would be impossible without hopelessly confusing the issues to undertake any analysis of such a list by finding out why each buyer bought.” Judge Hand’s hesitation is similar to that of courts in later decisions which point out the existence of a book on a stand may show no more than that they have not yet been challenged in a proper court proceeding. In United States v. Rebhuhn, 109 F.2d 512 (CCA 2, 1940), the trial judge had refused to allow in evidence a copy of a certain book. However, that book was introduced solely to show the standing •of the authors in relation to the excerpts •defendants had taken from their works. 'The reputation of the authors was found to be immaterial, however, since the defendants had abusively used the excerpts. This issue is quite separate from that of •contemporary community standards. The issue of similar items appeared in the case of United States v. Oakley, 290 F.2d 517, 519 (CCA 6, 1961), in connection with the motives of the defendant. The observation of the court, however, is pertinent to the situation in this case. The case concerned photographs. Judge O’Sullivan, speaking for the court, said: “Defendant told of pictures seen by him while in the service. He introduced numerous publications and made reference to other media of information and entertainment currently available to the view of the public. He argues that his material was no worse than these. From his experience with these matters, he was persuaded, he says, that his enterprise was not illegal, and criminal intent was absent. We need not here pass upon the relative merits, or demerits, of defendant’s wares and what may be obtained elsewhere. We decline to hold that contemporary sophistication has reached a point whereby to provide this defendant, or anyone else, with a license to prosecute the business of disseminating obscenity. It was for the jury here, under proper instructions and applying ‘contemporary community standards’ in the context of defendant’s conduct, to determine his guilt.” [Emphasis supplied.) Judge O’Sullivan’s opinion raises a grave hurdle in considering this issue. By allowing the use of allegedly similar books to show contemporary community standards in this case, would we not be granting license to all persons to disseminate material which compares to that on the market before the material on the market has been adjudged obscene or not ? A case dealing more extensively with this issue was Womack v.