United States v. Obscene Magazines, Film & Cards

GOODWIN, Circuit Judge: We affirm the denial of forfeiture in these two in rem obscenity forfeiture proceedings which were tried to the court without a jury. The government has appealed, and the appeals have been combined. While the exhibits differ from each other, all depict human bodies, or parts thereof, in various postures of reproductive or erotic behavior. Some, if not all, of the exhibits probably would be patently offensive to large numbers of involuntary viewers. Many of the exhibits, however, might not offend other viewers. The district court was not persuaded that any of the exhibits were so patently offensive, when measured by the community standards of the Los Angeles area, as to warrant declaring them contraband and forfeit to the government. The government asserts here that the district court abdicated its duty to evaluate each exhibit according to the legal standards of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), as required in the mandate remanding these cases to the district court following earlier appeals. See United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). While the district court might have articulated its reasoning in the language of the cited cases, we interpret the challenged judgments as ultimate findings that the government had failed in its burden of persuasion. The government took the position in each case that the exhibits spoke for themselves and that no evidence of community standards was necessary. In view of the trial judge’s expressed doubt about the community standards of the Los Angeles region, we do not believe that the trial judge’s characterization of his decision as one of nonobscenity “as a matter of law” requires another trial. The colloquy tells us that the judge was not persuaded that the exhibits in question were any worse than the photographs found in magazines for sale in various sections of the city and its surrounding communities. Thus his “matter of law” statement could be interpreted as a belief that there was a failure of proof “as a matter of law” even though his choice of “matter of law” nomenclature does appear to be less felicitous than a simple finding of “not proven”. United States v. Hamling, supra, supports the proposition that, if the government does rely upon exhibits which meet the Miller test and wins, the defendant is not entitled to a reversal for insufficient evidence. It does not follow, however, that, if the government chooses to rest its case upon the exhibits and loses, the trier of fact must be reversed. Here, it is true that the trier could have found the exhibits obscene under the “patently offensive” test of Miller v. California, supra, but he did not do so. Had there been a jury, it could, perhaps, supply its own views of community standards. The judge, a resident of the general area, felt unable to assert with any confidence that, by the standards of the Los Angeles area, the exhibits were sufficiently offensive to require him to declare them contraband. Again, he may have expressed himself badly, but we doubt that upon another trial he would reach a different result. The cases do not hold that a trier of fact must, as a matter of law, respond at a level of outrage equal to the minimum level that will pass First Amendment muster under Miller. We view these cases as cases in which the government has the burden of convincing the trier of fact. Here the government failed to do so. It is difficult enough for appellate courts to review censorship value judgments after the trier of fact has convicted, without having to review essentially fact-finding decisions after the government has lost. Affirmed.