author: COFFIN, Chief Judge. LEVIN H. CAMPBELL, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Joseph N. PALLADINO, Joseph N. Palladino, Jr., Appellants.
    No. 72-1005.
    United States Court of Appeals, First Circuit.
    Argued Dec. 4, 1972.
    Decided Feb. 22, 1973.
    Judgment Vacated June 25, 1973.
    See 93 S.Ct. 3066.

      Herald Price Fahringer, Jr., Buffalo, N. Y., with whom John A. Pino, Boston, Mass., was on brief, for appellants.
    Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Defendants, father and son, were convicted jointly by a jury on three counts of a nine-count indictment charging the mailing of obscene matter in violation of 18 U.S.C. § 1461, and were sentenced respectively for four and two years. The critical questions on appeal are whether the materials found obscene are constitutionally protected as a matter of law; whether proof of pandering was admissible, “the crime of pandering” not having been charged; and whether the government was obliged to proffer expert testimony on the three components of obscenity — dominant prurient appeal, patent offensiveness exceeding community standards, and utter lack of redeeming social value. Several other issues of lesser import will be discussed briefly.

The evidence for the prosecution consisted of the materials charged as being obscene, some additional materials evidencing the manner of distribution, testimony by four recipients, including one government agent who ordered books under a false name, and evidence that defendants, through their company, Granite Mail Order House, Inc., had engaged in large-scale mailing operations. The defense evidence consisted of comparative materials which had been found non-obscene by various courts as well as a recent issue of Playboy magazine designed to demonstrate contemporary community standards. The district court directed verdicts of acquittal on three counts which were largely duplicative of others. The jury acquitted on one count charging the mailing of a deck of playing cards illustrating various positions of sexual intercourse and on two counts charging the mailing of advertising circulars.

The Materials

The materials found to be obscene were five books and a mailing consisting of three brochures. The latter and two other sets of mailed brochures found not obscene evidenced the tenor of the marketing of the books. Each book will be briefly discussed, together with reference to it in the brochures. The three brochures in the mailing found obscene will be described separately.

“A Report on Denmark’s Legalized Pornography” is a 560 page, hard cover volume. The first 494 pages consist of 264 pages of interviews on the subject of Denmark’s recent scatological equinox; two Gallup polls on the legalization of pornographic books and pictures; two articles in the Danish Review concerning Danish attitudes toward pornography; and a 180 page “Pornography Report of the Penal Code Council”. The last 65 pages of the book consist of a collection of advertisements of pornographic materials. The first half of this section is devoted to many small black-and-white advertisements. The second half consists largely of full-page magazine advertisements in color portraying, inter alia, actual sexual intercourse, acts of fellatio, lesbianism, cunnilingus, and group sexual activity by three and four persons. A brochure advertised this book with the lead-off text: “New in America — SEE FOR THE FIRST TIME — THE NO HOLDS BARRED ILLUSTRATIONS from Scandinavian magazines and SEX PERIODICALS — MANY IN FULL COLOR .... ORGIES — EVERY SEX NOVELTY about which you have heard whispers . . . .’’At the bottom of the advertisement there is reference to “the most important social revolution of our time” and the interviews, articles, and penal code report.

“Scandinavian Pornography” is also a lengthy hard cover book of some four hundred pages. After 110 pages devoted to a history of “The Fanny Hill Case”, a subsequent potpourri includes brief sections of “Inside a Porno Shop”, “Copenhagen Sex Fair”, some thirty pages of Danish and Swedish magazine illustrations, 140 pages of interviews, “Swedish Porno Cartoons”, comments by a Danish Supreme Court Justice on proposals to reform the Danish Penal Code concerning pornography, and a Ministry of Justice Report, sixteen pages of covers of magazines which had been banned, and a final thirty-one page section of black and white pictures from a Danish magazine. The photographs, while less explicit than those in the Danish “Report”, display genitalia and simulated intercourse, with a sprinkling of sadomasochism, lesbianism, and bestiality. The cartoons run a similar gamut with flagellation added. The blurb in the brochure, after headlining “CANDID ILLUSTRATIONS, NEVER SEEN IN THE U.S.A. BEFORE”, and mentioning a report “under the new freedom”, reads: “Fantastically detailed sex cartoons [sic] strips, illustrating sado-masochism, lesbianism, shocking eroticism .... Drawing depicting a variety of sexual deviations, and strange sex acts . . . Every Sex Act — natural and perverse

“Anal and Oral Love” is a two volume, paperback work, running to some 380 pages of text and over 120 illustrations devoted to a historical account of various love practices connoted by its title. The chapters treat in a literate, although undocumented, fashion with sex practices from early man, through the major ancient civilizations, up to Victorian times. The last chapter, an effort to carry the story into the current era, is set in larger type, makes little pretense at scholarship, and consists mainly of supposed case histories of present-day male homosexuals. The illustrations are all drawn from sculpture or graphic art, from ancient to contemporary, and depict a wide variety of anal and oral sexual activity. A sizeable selected bibliography is contained in each volume. “Anal and Oral Love” is advertised in a brochure announcing “Here are the hard ones setting the new pace! They’re heavyweight and hard-crusted books that are boldly unique”. The blurb describes the work as a “2 volume picture book”, and then describes it as “The ‘definitive’ sexual survey of man’s most off-beat sex acts” which “spells out what The Kinsey Report only hinted about!” The advertisement also contains two explicit drawings of fellatio and sodomy.

The fourth work, a paperback book entitled “Animals as Sex Partners” contains 191 pages of text on supposed contemporary case histories narrating experiences in bestiality, with less than a dozen illustrations from artistic works. This is heralded in a full page advertisement as a “Sex Slammer”, “an erotic shocker making others tame and childish by comparison!” A lengthy extract of one encounter is reproduced, together with two illustrations.

The brochures advertising these books were enclosed in envelopes to the addressee with no external identification save the name and address of defendants’ company. They contained a note to “purchaser” that the material described was not obscene, that minors should not order the material, and that one could have his or her name removed from the mailing list by sending back the mailing.

The mailing charged in Count IX, which was found to be obscene consisted of three brochures. One advertised “The Photographic Deck of Sexual Love”, with a number of photographs depicting a man and a woman in various sex positions; the full deck itself was found nonobscene by the jury in acquitting on a different count. A second advertised “My-O-My” magazine on one side, wherein three groups of nude males were photographically portrayed, and covers of six other magazines on the reverse side showing mostly couples in various amorous poses. The most flamboyant brochure advertised on one side “For the Super-Sensual”, the book “Sex Tools for Erotic Pleasure”, with a photograph, a listing of various sex gadgets under the blurb, “A New High in Orgasms”, and some textual descriptions. On the reversed side are advertised, as “a masterpiece of sensuality” “The Come Freak”, the revelations of an insatiable woman, with textual examples; and “The Middle-Aged Pervert”, characterized as “A Raging Inferno of Sexual Demands!”, again accompanied by textual extracts. Also listed are brief descriptions of eight other books including “Inside the Sex Deviate”, “Anatomy of Nine Perverts”, “The Sexmasters Guidebook”, and “The Orgasm Masters”.

Protection as a Matter of Law

Our first task is to address the issue whether, as a matter of law, any of these materials are non-obscene and therefore protected by the First Amendment. The three-fold test of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), is semantically clear: (1) do the materials, taken as a whole, appeal primarily to prurient interests of the average adult (or, if directed to deviants, to the prurient interests of the intended group, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966)?; (2) are the materials patently offensive because they affront contemporary community standards relating to sexual matters?; and (3) are the materials utterly without redeeming social value? We recognize our nondelegable duty to decide, even as against a contrary jury verdict, that a given work is non-obscene, if we are so convinced. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).

Unfortunately, we are unable to resort to a simple matching exercise as we did in Hunt v. Keriakos, 428 F.2d 606 (1st Cir. 1970), comparing the materials at issue here with similar ones given absolution by the Supreme Court or even by other courts. The comparative materials submitted in evidence by the defendants comprise such magazines as those we found non-obscene in Hunt, supra, portraying either women or men, with genital areas exposed, but no action suggested. A film, “Wild Man and Bride”, held not obscene in Commonwealth v. Palladino, 1970 Mass.Adv.Sh. 1127, 260 N.E.2d 653, was described by the district court as merely portraying “a nude man and woman cavorting on a bed kissing and caressing”, without sexual congress.

Defendants have sought to assist by including in their brief a catalogue of cases in which the Supreme Court, federal courts of appeal, federal district courts, and state appellate courts have held various materials . non-obscene. From our reading, we have not been able to identify publications held non-obscene as a matter of law, which, as do most of these here, combine text, often pedantic; photographs and illustrations depicting not only actual copulation but also a range of deviant practices from fellatio and sodomy to bestiality and group orgies; and such merchandising brochures as those before us. Defendants also advance the proposition, said to be substantiated by the cases in their catalogue, “Essentially, any book that deals seriously with the subject of sex, no matter how frankly, must have some redeeming social value .... By its sweeping action, the Supreme Court has left us with the inescapable conclusion that the printed word simply cannot be obscene .... The fact that [these publications] may contain illustrations of the subject matter in no way detracts from their redeeming social value.”

We confess that we are not certain whether the law presently protects all printed works involving solely textual material. Compare Ginzburg v. United States, 383 U.S. 463, 499 n. 3, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (Stewart, J., dissenting), with Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967), rev’ing United States v. West Coast News Co., 357 F.2d 855 (6th Cir. 1966). More importantly, we doubt whether a “serious” discussion in print is sufficient in all cases to save a publication which also contains concededly or obviously obscene, unrelated illustrations or photographs. But see United States v. 35 MM. Motion Picture Film, 432 F.2d 705 (2d Cir. 1970); United States v. Stewart, 336 F.Supp. 299 (E.D.Pa.1971). Yet we do not here decide whether a part so dominates that whole that the whole may be said to be “utterly” without redeeming social value. Rather, even on the assumption that the books in issue might, if standing alone, not be obscene, we tend to think that all but one of them are the “close cases [where] evidence of pandering may be probative with respect to the nature of the material in question”, Ginzburg, supra, 383 U.S. at 474, 86 S.Ct. at 949, and which are for the jury to decide, after hearing the proper evidence.

Defendants claim that the indictment failed to charge “the crime of pandering” or the conduct upon which the crime of mailing obscene matter could be based, appealing to the language of the Court in Ginzburg that “the prosecution charged the offense in the context of the circumstances of production, sale, and publicity . . . . ” 383 U.S. at 465, 86 S.Ct. at 944. Wholly apart from the fact that there is no separate crime of pandering, the indictment in Ginzburg was no more explicit in its pandering aspect than that in this case; indeed, the instant indictment went further than Ginzburg’s in alleging the mailing of obscene circulars. Defendants cannot claim surprise. The issue was thoroughly aired in pre-trial proceedings and argued constantly during trial. While United States v. Pinkus, 333 F.Supp. 928 (C.D.Cal.1971), did hold for the proposition that pandering must be charged in the indictment, it erroneously stressed the Ginzburg language above quoted as implying the presence of pandering language in the indictment. We agree with Judge Frankel that “conduct” tests are not, strictly, elements of obscenity but “only permissible kinds of relevant evidence which may serve in a close case to tip the balance toward a finding of obscenity” [emphasis in original], Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288, 294 (S.D.N.Y.1969) (three-judge court), aff’d, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970).

With respect to “A Report on Denmark’s Legalized Pornography” and “Scandinavian Pornography”, the bulk of each book is informative concerning the issues revolving about sexual freedom and the photographs, though approaching the extreme in explicitness, are not unrelated to the subject being discussed. But, as our above discussion of the advertisements indicates, the books were exploited by defendants, as was “The Housewife’s Handbook on Selective Promiscuity” in Ginzburg, the purveyors’ deliberate emphasis being “the sexually provocative aspects of the work”. 383 U.S. at 472, 86 S.Ct. at 948. As for “Animals as Sex Partners”, this work seems to have no historical or literary value, consisting of supposed case histories, and in any event was exploited as a “Sex Slammer” and “erotic shocker”. We cannot say that they are constitutionally protected as a matter of law. Of the brochures charged by Count IX, one must be non-obscene. Since the jury found “The Photographic Deck of Sexual Love” itself not obscene, it is difficult to see why a partial presentation thereof, consisting simply of sex positions, could be. However, neither the advertisements for the magazines nor the brochure, advertising “Sex Tools for Erotic Pleasure”, “The Come Freak”, and “The Middle-Aged Pervert”, seem to us to have much claim to protection as a matter of law under any one of the Roth-Memoirs tests.

With reference to “Anal and Oral Love”, we take a different view, although without any deep sense of certainty. Not having had the benefit of any expert testimony for or against its meeting the Roth-Memoirs standards, we are left with the two volumes themselves. They purport to be and are a cohesive and comprehensive account of certain types of age-old sexual conduct, drawing on the literature and art of several countries and epochs. While, for all we know, the dominant theme may be prurient and the discussion may exceed national standards in their offensiveness, we cannot say that it is utterly without redeeming social value any more than was “Fanny Hill”. Memoirs, supra. We therefore hold that both volumes of “Anal and Oral Love” are non-obscene as a matter of law.

Sufficiency of the Evidence

By now it should be clear that we feel singularly unequipped to give intelligent review of the jury’s implicit findings that the publications charged in Counts II, IV, and IX failed all of the Roth-Memoirs tests, in the context in which they were merchandised. No one of the publications could be simply dismissed as “hard core” pornography. To track the Solicitor General’s descriptive catalogue in Ginzburg, which Mr. Justice Stewart approved, 383 U.S. at 499 n. 3, 86 S.Ct. at 957, the Danish and Scandinavian books do contain “photographs with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and . . . scenes of orgy-like character.” They also contain gross comic book drawings of the same “activities in an exaggerated fashion”. But they are part of an elaborate and documented review of social and legal change. The “Sex Tools” brochure and “Animals as Sex Partners” come close to being verbal descriptions of “such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value”. These two publications, however, pose the problem of determining whether there is a dominant theme which appeals to the prurient interest of a deviant sexual group. Indeed, the Danish and Scandinavian books also deal, to a lesser extent, with such deviant practices as fellatio, lesbianism, flagellation, and bestiality. Unlike the situation in Mishkin, supra, 383 U.S. at 510, 86 S.Ct. 958, 16 L.Ed.2d 56, there was no proof, beyond the materials themselves, of prurient appeal to any deviant group. See n. 7, infra.

The present case was tried as carefully and competently as an appellate court could wish. The district court, particularly, exercised exceeding care to provide a fair trial and clear instructions. And it cannot be said that the jury, which acquitted on three of six counts presented to it, was undiscriminating. While the defense submitted advance requests for instructions in the event that expert witnesses were used, citing United States v. Klaw, 350 F.2d 155 (2d Cir. 1965), no such experts were offered. One of several grounds for defendants’ motion for acquittal at the end of the prosecution’s case, not argued in any detail, was the failure to offer expert testimony on dominant prurient appeal, national standards, and redeeming social value. Although it seems unfortunate to change the ground rules after a trial as well run as this one, we have come to the point where, so long as the tests for obscenity remain the present sophisticated triology, we think fundamental fairness, and therefore due process, requires the intervention of experts. If we are mistaken in that conclusion, we have such doubts about our own unassisted ability to give obscenity cases informed judicial review, that we reach the same result through our supervisory power.

In saying this we are under no illusion that “experts” will render the process of adjudicating obscenity a completely rational one, at either trial or on appellate review. There will be problems attendant on qualifying experts, difficulty in confining them to testimony within their competence and directed to subordinate factors bearing on the ultimate question, contradictory testimony and confusion, and perhaps much testimonial nonsense. Nevertheless, we think that the several applicable tests can have a chance of being fairly applied only if jurors and judges are exposed to opinions and made to think about whether the “dominant” theme is an appeal to “prurient interests” and, if so, to what groups; whether material is “patently offensive” because it affronts “contemporary” and national standards relating to the description of sexual matters; and whether material is “utterly without redeeming social value”. Such matters as prurience, deviant attitudes, national standards of acceptability, and redeeming social value are far removed from the thought and experience of the average jury. Jurors, it seems to us, need assistance in wrestling with such issues fully as much as they need assistance in evaluating an insanity or other mental or emotional illness defense.

The classic argument is set forth in Klaw, supra. That court, after rehearsing the multiplicity of questions to be answered, concluded, “Having in mind the constitutional contrictions on the breadth of legislation affecting the freedom of expression, if appeal to prurient interest — on either an ‘average man’ or a ‘deviant typical recipient’ basis — is the statutory concern, then it seems desirable, indeed essential, that such appeal to someone be shown to exist.” 350 F.2d at 165-166. It then added, “And if proof of prurient stimulation and response is generally important, it is particularly necessary when the prurient interest may be that of a deviant segment of society whose reactions are hardly a matter of common knowledge.” Id. at 166. The role of the expert would not be to give an opinion “which expresses his legal judgment concerning the dominant theme’s appeal to prurient interest, but to provide the trier of fact with a sufficiently full array of professional observations in order to render unlikely a hasty assumption that the publication at issue will affect everyone it reaches in the same way, under all circumstances.” Stern, Toward a Rationale for the Use of Expert Testimony in Obscenity Litigation, 20 Case Western L.Rev. 527, 549 (1968).

We also deem experts important, although in varying degree, to guide juries through the other two branches of the Roth maze. National standards are, to say the least, elusive beasts. A determination of whether a document exceeds the national level of tolerance requires some exposure not just to publications of national or broad regional scope, but also to the views, attitudes, habits, and tastes of other communities with different climates, cultures, and histories. As the concurrence in Groner, supra n. 5, at 72, recognized, a Boston jury, perhaps unfairly sterotyped as puritanical, may well, if left to its own concepts of offensiveness, produce a different verdict on the same manuscript than that of a jury elsewhere. If we are to prevent uneven and hence unequal application of the same federal law, we must have experts to advise the jury, and the no less limited appellate judges, as to the contemporary national standards. In this we agree with Mr. Justice Frankfurter’s observation in Smith v. California, 361 U.S. 147, 165, 80 S.Ct. 215, 225, 4 L.Ed.2d 205 (1959) (concurring) that “community standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts.” See also Ross, Expert Testimony in Obscenity Cases, 18 Hastings L.J. 161, 174-177 (1966).

Social value, most particularly, is a subject requiring careful delineation. It is axiomatic First Amendment doctrine that the majority may not prescribe what is valuable expression. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Thus if we are to prevent the obscenity law’s unusual provision for judgment of a publication’s value from becoming the passing majority’s tool for repressing expression it finds distasteful, unusual, discomforting, or simply threatening, we must have witnesses, with psychological, sociological, medical, historical, or literary expertise, to explain objectively the total absence of redeeming social value. See generally Stern, supra.

While the required use of experts will not make obscenity decisions easy, they will, we think, make the process of decision a more structured one. In any event, the alternative is, as the court said in Klaw, the less acceptable one of res ipsa loquitur. The jury in the present ease was handed the four books, comprising almost 1500 pages, and the set of brochures, was given an hour’s worth of careful instruction, and was expected to rise above its personal preferences and day-to-day experiences, take the national pulse, sense what was not merely shocking to it but prurient to the group or groups being appealed to, and identify any possible redeeming social value. If this seems like being cast loose on a windless sea, appellate courts are in an even less enviable position, for juries at least have, by virtue of their selection, some sense of sharing values with some community. We are completely sympathetic with the court in United States v. Groner, supra, at 2284, which said, “Without some guidance from experts or otherwise, we find ourselves unable to apply the Roth standard with anything more definite or objective then our own personal standards of prudence and decency, standards which should not and cannot serve as a basis for either denying or granting first amendment protection to this or any other literature.”

We therefore reverse and remand for retrial. In the light of our discussion of protection as a matter of law, the government may still press the three counts of mailing obscene matter on which the jury convicted the defendants. However, since we hold both volumes of “Anal and Oral Love” protected as a matter of law, and since the jury here necessarily held the advertisement for “The Photographic Deck of Sexual Love” not obscene, the government may not again introduce these materials into evidence to establish the crime of mailing obscene matters. We do not accept the defendant’s contention that the government must limit each count to a single document, or alternatively that if multi-document counts are permitted, the jury must be instructed that it can only convict if all of the documents in a particular mailing are obscene. The offense is the mailing of obscene material; hence all matters in a single mailing may be charged in one count and guilt found if any one of them is obscene.

Since a retrial is possible, we deem it important to comment on the court’s instruction that the jury, in addition to answering the Roth-Memoirs trilogy of questions, or as an aid to answering them, should determine whether the Danish and Scandinavian books were “legitimate” publications or whether the written material was “simply the excuse for sale of these most vivid” photographs at the end of the book. The Supreme Court in Ginzburg threw some doubt on this kind of approach, absent evidence of pandering. 383 U.S. at 471, 86 S.Ct. 942, 16 L.Ed.2d 31. While the problem of assessing the whole, when the parts are disparate, is a vexing one, it nevertheless seems inconsistent with the prescribed tests, which speak in terms of effect, to ask a jury to speculate on questions of purpose and good faith.

A question arising during the trial as to the court’s in camera examination of a juror who had indicated his discomfort with the subject matter is now moot. Should such a situation again arise, inquiry should be made in the presence of counsel. United States v. Larkin, 417 F.2d 617 (1st Cir. 1969). Defendant’s challenge to the constitutionality of 18 U.S.C. § 1461 on the ground that Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), voids any governmental power to restrict distribution of obscene materials to consenting adults is, for the present at least, foreclosed by United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). All other objections have been considered and are found to be without merit.

Judgment reversed. Case remanded for proceedings consistent with this opinion.

LEVIN H. CAMPBELL, Circuit Judge

(concurring).

I would be tempted to follow Judge Aldrich’s dissenting views were I not of the opinion that the law, as it now stands, precludes our doing so. However, were I to do so it would be with these qualifications:

I think the most potent objection to the Roth test rests on the virtual impossibility of applying it. “Obscenity” or “pornography” is not a word susceptible to close analysis and definition. Essentially they are pejoratives, indicating material which arouses disgust in someone. Unless one is to sanction banning all materials which any substantial body of opinion might regard as disgusting— a position inviting an intolerable degree of censorship in view of the many different standards today prevailing, and one properly rejected by the Supreme Court —one is left with the virtually impossible task of selecting out that which is “really” bad from that which is not quite so bad. Experts may help in bringing about a more sophisticated consideration of the issue, but I agree with Judge Aldrich that they will not meet the problem.

Assuming, then, that we may have to give up the attempt, what then ? I think that society should be allowed to regulate somewhat the display and circulation of highly offensive materials although not to ban them. Modern advertising in a market economy is a potent and intrusive force. It would be unfortunate if our society, already dominated by Nielsen ratings and televised fantasies of violence and unreality, should be further dominated by the fantasies of inventive merchants of smut. I think that families are entitled, if the legislature so determines, to a reasonable degree of protection from unsolicited materials, and from the unregulated intrusion by entrepreneurs of pornography into their daily lives through the mails and media, including, at some future time, the omnipresent TV set.

Should the unsatisfactory effort to separate “hard core” from protected materials ever be abandoned, I think that attention might be focused on working out principles permitting reasonable restrictions on the most blatant public advertising and display of pornography. Admittedly the problem of definition would remain: but I think a somewhat looser definition would be permissible since the type of regulation I have in mind would relate only to the more intrusive forms of publicity and would fall considerably short of outright banning. While consenting adults should be free to receive and see what they want, I do not think that society is constitutionally required to surrender all attempt at control over the milieu within which its children are reared.

ALDRICH, Senior Judge (dissenting).

I do not, of course, disagree about children. It is difficult to disagree at all with the decision of the court unless one is to take the stand that hard core pornography is no longer to be considered unlawful. So far as the large scale, colored, and highly focused pictures, and the scenes they portray, in the case at bar are concerned, it is hard to think of what, other than scatological, has been omitted. Nevertheless, I confess that the full freedom advocated by the great majority of its members, see Presidential Report of the Commission on Obscenity and Pornography (1970), though said to be “among the most controversial reports ever produced by an official government body,” has much to recommend it, not only to avoid sporadic and highly selective enforcement that is eryingly conspicuous, and probably inevitable, but because I believe that public surfeit will more nearly effect a cure than will any process of judicial sanction. I must wonder, too, not only with the Commission majority, but with that well known nonlibertine Billy Graham, whether pornography is objectionable other than as a matter of aesthetics, and is but a reflection of contemporary behavior rather than a cause. If pornography, privately enjoyed, is not harmful, what is the need for a “redeeming social value”? More important, on what basis is a value judgment to be formed?

If pornography is to be prosecuted it is perhaps more logical to have juries weigh expert opinion than to apply, unaided, their own individual concepts. Yet, having dealt with experts in this field for over three decades, I am not sanguine enough to think that much will be accomplished. Even if any are found qualified to expound a national standard, cf. Jacobellis v. Ohio, 1964, 378 U.S. 184, 194-195, 84 S.Ct. 1676, 12 L.Ed.2d 793, how much weig-ht will an average juror attach to the witness’ appraisal if it differs from his own? We have insisted upon experts in patent cases, e.g., Contour Saws, Inc. v. L. S. Starrett Co., 1 Cir., 1970, 428 F.2d 314, 319, but that is to fill a conceded void. Will not the average juror, whether assisted or not, still not know anything about art, but know what he doesn’t like?

But deeper than the matter of experts, without in any way criticizing the scholarship of the court’s opinion, or its legal correctness in the light of judicial precedents, I wonder if we are not deluding ourselves. If a deck of cards illustrating 52 positions of sexual intercourse is not obscene — I reject the thought that the cards have a redeeming social value because of their obverse side — presumably because they are “straight,” although we are told that many persons consider positions other than the “missionary” unnatural; if two volumes illustrating oral and anal congress, although these are classic “unnatural” acts, are obscene in the jury’s mind, but not in the court’s because of their art, or the accompanying text, on what rational basis can one decide whether an “appendix” of 30 pages of graphic photographs of so-called unnatural and other acts is obscene? I resist the temptation to repeat the list of cases favoring the defendant to be found in defendants’ brief herein.

Whether publishers of putative pornography are jailed or not has come to be a game of chance played with prosecutors, juries, courts, and finally, with all respect, with the Supreme Court, whose ultimate wisdom permits it to perceive what is, hard core and what is not. In the light of the First Amendment protection afforded to any speech falling short of pornographic condemnation, one may envisage the chilling effect that this uncertainty engenders. When, however difficult the boundary was to define, a large area of writing and illustration was considered impermissible, such nubilation had to be tolerated. With the area shrunk to its present proportions, the price seems very high.

Finally, I hope that the pandering rule, except insofar as it serves to protect from affront persons who, understandably, wish to be left alone, will go by the board. Is this to be the one field where seller’s talk is forbidden? Is a book any dirtier because the vendor says it is? The concept of a subjective test is reminiscent of the Expurgated Mother Goose, which, with tongue-in-cheek, was advertised as omitting “salacious” words. E.g., “Georgie Porgie, pudding and pie, _ed the girls and made them cry.” Since a reader with “lascivious thoughts,” would readily supply, at that time unprintable, words, did this become an obscene book?

Much current pornographic material is, to many, highly offensive. But offensiveness is not the measure of free speech, Cohen v. California, 1971, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, and centuries of history demonstrate that what is one man’s poison is another man’s position. I wonder if the time has not come when consenting adults should not only be permitted to read what they choose, Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, but should be free to purchase it. It is true that in United States v. Reidel, 1971, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813, the Court refused to apply Stanley to afford rights to a seller, direct or indirect. The opinion suggests to me an unwillingness to consider the readers’ rights as a matter of standing. See 402 U.S. at 355-356. The defense of standing has been rapidly eroding. Compare Arnold Tours v. Camp, 1970, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179, where it might be said that Court adopted the position which only the minority was willing to take the previous term in Data Processing Service v. Camp, 1970, 397 U.S. 150, 167, 90 S.Ct. 827, 25 L.Ed.2d 184. Defendants in the case at bar, quite apart from their own claims to freedom of speech, would appear to have the same standing to represent the rights of a purchaser as had the defendant in Eisenstadt v. Baird, 1972, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349. Having milder reservations than my brethren, I would order judgment for the defendants.

      . Count II charged the obscenity and mailing of “A Report on Denmark’s Legalized Pornography”, “Scandinavian Pornography”, and a two volume work, “Anal and Oral Love”. Count IV charged the mailing of a paperback book, “Animals as Sex Partners”. Count IX covered the mailing of three brochures: an advertisement for “The Photographic Deck of Sexual Love”; an advertisement for, principally, three books — “Sex Tools for Erotic Pleasure”, “The Come Freak”, and “The Middle-Aged Pervert”; and an advertisement for the magazine “My-O-My” and six other magazines.

      . We have previously held that in federal prosecutions the referent for such standards is the nation. Excellent Publications, Inc. v. United States, 309 F.2d 362, 365 (1st Cir. 1962). The question whether the standard in a state prosecution is national or local is presently pending decision by the Supreme Court. Miller v. California, - U.S. -, 93. S.Ct. 2607, 37 L.Ed.2d - (1973).

      . We discuss subsequently whether we may properly consider the manner of merchandising.

      . Professors Lockhart and McClure came to the same conclusion:
      “[I]f the Supreme Court should go beyond hard-core pornography in categorizing the obscene ... it is hard to see how material' could be intelligently appraised for obscenity or how an appellate court could intelligently review obscenity decisions without the evidence of competent critics or experts. We think the admission of such evidence, when proffered by either side in an obscenity case should be made a constitutional requirement.” Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 99 (1960).

      . We thus follow those federal, United States v. Klaw, 350 F.2d 155 (2d Cir. 1965); United States v. Groner, 475 F.2d 550 (5th Cir. 1972), reargument granted; see also Luros v. United States, 389 F.2d 200 (8th Cir. 1969), and state courts, e. g., California (In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968); In re Harris, 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305 (1961), vacated and remanded on other grounds, 374 U.S. 499, 83 S.Ct. 1876, 10 L.Ed.2d 1044 (1963)); Maryland (Dunn v. State Board of Censors, 240 Md. 249, 213 A.2d 751 (1965)), which have required expert testimony for either of these reasons. For statutory authorization for expert testimony, see Mass. Gen.Laws Ann. ch. 272, § 28F.

      . Two helpful commentaries are Stern, Toward a Rationale for the Use of Expert Testimony in Obscenity Litigation, 20 Case Western L.Rev. 527 (1968); Ross, Expert Testimony in Obscenity Cases, 18 Hastings L.J. 161 (1966). See also Note, The Use of Expert Testimony in Obscenity Litigation, 195 Wis.L.Rev. 113. Although Ross and Stern disagree as to which elements of the test require expert testimony, in our view the basic rationale requires experts on each element of the criminal concept.

      . The government concedes the viability of Klaw for “esoteric” materials aimed at a deviant group, assuming that this ease does not involve such. But, as the passages quoted above make clear, the rationale, while “particularly necessary” when the materials are intended for deviants, also applies to appeals to average prurience. We think this ease illustrates the unworkability of hinging the requirement for experts to the kind of intended recipients, for most of the materials contain a mixture of “normal” and “deviant” appeals. We note that Klaw would not apply to such “hard core” materials as color slides depicting erotic acts, United States v. Wild, 422 F.2d 34 (2 Cir.), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971). See also United States v. Manarite, 448 F.2d 583, 593 (2d Cir.), cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d 264 (1971).

      . He adds the necessary caveat, “Of course the testimony of experts would not displace judge or jury in determining the ultimate question whether the particular book is obscene, any more than the testimony of experts relating to the state of the art in patent suits determines the patentability of a controverted device.” 361 U.S. at 165, 80 S.Ct. at 225.

      . Defendants assert that the Supreme Court in Wiener v. California, 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539 (1971), found the magazine “My-O-My” not obscene as a matter of law. Since neither the Supreme Court’s order nor the summary of the ruling below, 40 U.S.L.W. 3240 (U.S. Nov. 16, 1971), indicate anything in that regard, and the lower court’s opinion is not published, we are not sure if this is so. If, however, the defendants could establish at a new trial that this was the ruling, the district court could black out the side of the advertisement dealing with “My-O-My.”

      . Greenleaf Classics, Inc., edition (1970) p. 8, Foreword of D. H. Gilmore.

        : Concededly, public surfeit is not imminent, see Sexploitation: Sin’s Wages, Newsweek, Feb. 12, 1973, p. 78.

      . Foreword, n. 1, at 11.

      . A risk enabling them to milk the public, as did bootleggers during Prohibition. Op. cit. ante, at 9; see, also, n. 2.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Joseph W. SAVAGE, Petitioner-Appellant, v. J. D. HENDERSON, Warden, United States Penitentiary, Atlanta, Ga., Respondent-Appellee.
    No. 73-1092.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1973.
    Joseph W. Savage, pro se.
    John W. Stokes, U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.
   PER CURIAM:

This appeal is taken from an order of the district court dismissing the mandamus petition of a federal prisoner seeking credit under 18 U.S.C. § 3568 on his federal sentence for time spent in state custody. The government has moved to remand the case for findings, admitting that appellant has alleged facts which, if true, would entitle him to relief. We grant the motion and remand the ease.

While on mandatory release from a ten-year federal sentence for unlawful sale of heroin imposed on November 20, 1959, the appellant was charged with robbery by Michigan state authorities. While in state custody awaiting trial on the state charge, the United States Board of Parole filed a detainer against him on December 20, 1967. Appellant plead guilty to the state charge on March 26, 1968, and on April 26, 1968, he was sentenced to a ten-to-fifteen year term of imprisonment. On August 2, 1972, appellant was paroled to federal authorities on the detainer warrant.

In his petition filed below, appellant alleged that he is entitled to credit on his federal sentence for the time spent in state custody from the date the federal detainer was filed against him until his release from his state sentence. Appellant contended that throughout this period he was in custody “in connection with” the 1959 federal sentence “by virtue of the Federal Parole Board detain-er warrant.” He alleged that while in state custody awaiting trial he was prepared to make bond, but the federal detainer prevented him from doing so.

It is frivolous to suggest that appellant is entitled to credit for that period of time when he was serving his state sentence. As the district court stated, “the mere act of filing a detainer did not convert the state custody for robbery into federal custody in connection with the unlawful sale of heroin.” As to time served in state custody and credited on the state sentence, the judgment of the district court is affirmed.

Appellant would, however, be entitled to credit for any time he spent in state custody, unable to make bond solely because of the federal detainer warrant. Taylor v. United States, 5th Cir. 1972, 456 F.2d 1101; Ballard v. Blackwell, 5th Cir. 1971, 449 F.2d 868; Davis v. Attorney General, 5th Cir. 1970, 425 F.2d 238. We therefore vacate the judgment below and remand to the district court for further inquiry and findings on the question of whether appellant’s confinement while awaiting trial is attributable to the federal detainer. O’Connor v. Attorney General, 5th Cir. 1972, 470 F.2d 732; Taylor v. United States supra; Ballard v. Blackwell, supra. Should the district court determine that appellant had been given credit on his state sentence for the time in jail awaiting trial, appellant will not be entitled to credit for that time on his federal sentence. Vignera v. Attorney General, 5th Cir. 1972, 455 F.2d 637; Radcliffe v. Clark, 5th Cir. 1971, 451 F.2d 250.

Vacated and remanded.


author: RIVES, Circuit Judge:

text:
    Earl WHITE, Plaintiff-Appellant, v. Dr. Glen E. PADGETT et al., Defendants-Appellees.
    No. 72-1597.
    United States Court of Appeals, Fifth Circuit.
    March 2, 1973.
    Rehearing Denied April 3, 1973.

      Edwin A. Green, II, Tallahassee, Fla., for plaintiff-appellant.
    W. Robert Olive, Jr., Dept, of Legal Affairs, Tallahassee, Fla., Ben F. Barnes, Thomas C. Wilkinson, Marianna, Fla., J. Ben Watkins, Steve M. Watkins, Tallahassee, Fla., for defendants-appellees.
    Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
   RIVES, Circuit Judge:

Predicating jurisdiction on 28 U.S.C. § 1343(3), plaintiff White brought this action for deprivation of his civil rights under 42 U.S.C. § 1983. Defendants claimed that the complaint failed to state any specific acts which would make them liable under 42 U.S.C. § 1983, quoted in the preceding note, and for- that reason moved to dismiss the complaint. The district court granted defendants’ motion without prejudice to the filing of an amended complaint. Plaintiff then filed an amended complaint more specifically, albeit succinctly, stating his claim as follows:

“That the Defendants * * * are sued in their official and individual capacities as members of the Inquisition of Incompeteney Committee.
“At all times mentioned herein, the Defendants were acting under the col- or of state statute * * *.
“That on the 21st day of August, 1965, Plaintiff was adjudged incompetent based on a petition filed in Jackson County [Florida] and was confined to Escambia General Hospital in Escambia County, Pensacola, Florida.
“That Florida Statutes 394.22(6) [F.S.A.] require the appointment of a committee and the Defendants herein were appointed to that committee; that said statute further requires each member of the committee to examine the person to be committed; that the Defendants herein did not comply with said statute, that is to say, that they did not within a reasonable time after notice of their appointment proceed to make such examination of said person as will enable them to ascertain thoroughly his mental and physical condition as of the time of the examination; that each of the Defendants signed their names to a report specifically stating that they had examined the Plaintiff as required by statute when in fact they had not.
“That the Plaintiff * * * was not appointed a guardian and therefore could not bring a civil action against any person or persons until after the year 1970 at which time his competency was restored; that the Statute of Limitations did not start running until after 1970.
“That the Defendants, through the above action, have caused the Plaintiff to suffer a deprivation of his rights, privileges and immunities secured by the Constitution of the United States of America, particularly the rights, privileges, and immunities secured by the Fifth and Fourteenth Amendments to the Constitution of the United States.”

(Emphasis added.) Defendants moved to dismiss the complaint as amended, again insisting that it failed to state a claim upon which relief can be granted, but this time claiming (1) that the plaintiff’s action was barred by the statute of limitations, and (2) that the defendants acted in a quasi-judicial capacity and hence are immune from liability for damages. The district court granted the defendants’ motion and dismissed the amended complaint, this time with prejudice. In its order the district court stated that:

“this Court is of the view that the amended complaint fails to state a claim upon which relief can be granted and that the amended complaint must be dismissed. Mills v. Small, 446 F.2d 249 (9th Cir. 1971); Bartlett v. Weimer, 268 F.2d 860 (7th Cir. 1959).
“Recognizing that the bar of the statute of limitations is an affirmative defense ordinarily raised and considered once defensive pleadings have been disposed of, this Court nonetheless further finds at this juncture that the statute of limitations would be a bar to maintenance of this action. Mills v. Small, supra.” (R. 94.)

This appeal ensued.

Two issues are briefed and argued by the parties, viz.: (1) whether plaintiff’s claim is barred by a statute of limitations, and (2) whether the defendants are immune from liability for damages. We hold with the defendants on limitations and do not reach the question of immunity vel non.

Plaintiff’s Claim Is Barred by Limitations

As the district judge observed, “ * * * bar of the statute of limitations is an affirmative defense * *» [R- 94. gee Rule 8(c), F.R. Civ.P.] However, the complaint is subject to dismissal under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief can be granted when the affirmative defense clearly appears on the face of the complaint.

The present action was commenced by the filing of the original complaint on June 23, 1971 (R. 4). The complaint affirmatively alleged the date of August 21, 1965, as the time at which plaintiff was adjudged incompetent and confined to Escambia General Hospital. The time intervening between the two dates last mentioned is five years, ten months and two days. Apparently in an effort to justify such a long delay, the plaintiff averred in his amended complaint that no guardian was appointed for the plaintiff and he “* * * therefore could not bring a civil action against any person or persons until after the year 1970 at which time his competency was [judicially] restored; that the Statute of Limitations did not start running until after 1970.” For reasons presently to be stated we conclude that, in taking that position, the plaintiff misapprehended the controlling principles of law.

Neither the plaintiff nor the defendants dispute the law as stated in plaintiff’s brief at page 25:

“There is no federal statute of limitations for claims brought under 42 U.S.C. § 1983 and 1985 thus the applicable Florida statute is to be borrowed. O’Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Beard v. Stephens (5th Cir., 1967) 372 F.2d 685. Cf. McGuire v. Baker (5th Cir., 1970) 421 F.2d 895.”

The parties are also in agreement, and necessarily so, that the applicable Florida statute is not one providing limitations for the recovery of real property, but is either subsection (4), as claimed by the plaintiff, or subsection (5) (a), as claimed by the defendants, of Florida Statutes Annotated § 95.11. In pertinent part that statutes provides:

“Actions other than those for the recovery of real property can only be commenced as follows:
“(4) Within four years. — Any action for relief not specifically provided for in this chapter.
“(5) Within three years.
“(a) An action upon a liability created by statute, other than a penalty or forfeiture.”

Section 95.11 contains no provision suspending or tolling the limitation period because of disability arising from insanity or from any other cause. In Florida the only limitation statute suspended or tolled by insanity or other disability is that applicable to the recovery of real property. The pertinent part of that statute is quoted in the margin. That difference in the Florida limitation statutes resulted in a holding by the Supreme Court of Florida, that a plaintiff’s disability by reason of insanity existing when his right of action for slander of title accrued could not toll the running of the statute of limitations, the court reasoning as follows:

“It is clear that his action was barred unless his insanity tolled the statute.
“The general rule is that unless a statute of limitations contains a saving clause, relief from its provisions [on] account of disability will not be granted. The statute in question contains an exception relative to recovery of real property but it does not help appellant who claims damages for slander of title. When the legislature refuses to write exceptions into the act the courts have consistently refused to do so. 34 American Jurisprudence, page 162, Section 201; Dobbs v. Sea Isle Hotel, Fla., 56 So.2d 341. See also Faulk & Coleman v. Harper, Fla., 62 So.2d 62. In this holding we do not overlook appellant’s contention that Section 95.20, F.S.A., authorizes this action. This statute has to do with actions for recovery of real property while the action here is based on tort and is not covered by the last-cited statute.”

Carey v. Beyer, Fla.1954, 75 So.2d 217, 218.

The strictness with which limitation statutes are construed in Florida is illustrated by a recent case, Gasparro v. Horner, Fla.Dist.Ct.App., 4th Dist., 1971, 245 So.2d 901, in which, over a vigorous dissent, a Florida court held that the cause of action of a minor, who had been orphaned in an accident occurring more than four years prior to commencement of the action but who had been adopted approximately 21 months after the accident, accrued on the date of the accident rather than the date of the minor’s adoption, and the action was barred by the four-year statute of limitations. On rehearing the majority said:

“As to whether the plaintiff’s disability of infancy operated to toll or suspend the running of the Statute of Limitations 51 Am.Jur.2d, Limitation of Actions § 138 (1970) states:
“ ‘While most courts give recognition to certain implied exceptions arising from necessity, it is now conceded that they will not, as a general rule, read into statutes of limitation an exception which has not been embodied therein, however reasonable such exception may seem and even though the exception would be an equitable one. The modern rule of construction in this respect is that unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, it must receive a general construction, and the courts cannot arbitrarily subtract therefrom or add thereto. Undoubtedly a hardship will result in many cases under this rule, but the court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial * * *.’
A study of Chapter 95, F.S. reveals neither express nor implied terms which would by reason of infancy toll the running of the particular period of limitation here involved.” [Emphasis that of the Florida court.]

245 So.2d at 905.

In the district court (R. 46) the plaintiff relied upon and quoted the statute prescribing the effect of a judgment adjudicating a person to be mentally incompetent :

“(10) Effect of judgment.—
“(a) After the judgment adjudicating a person to be mentally incompetent is filed in the office of the county judge, such person shall be presumed to be incapable, for the duration of such incompetency, of managing his own affairs or of making any gift, contract, or any instrument in writing which is binding on him or his estate. The filing of said judgment shall be notice of such incapacity.”

14A F.S.A. § 394.22(10)(a).

The presumption created by that statute is not stated to be a conclusive presumption, but may, we think, be rebutted by plaintiff’s evidence, Indeed, the present plaintiff successfully followed that course in the petition which he himself filed to set aside the judgment finding him to be a mental incompetent. In re White, Fla.Dist.Ct.App., 1st Dist., 1970, 230 So.2d 480.

Further, since under F.S.A. § 394.22(10) (a) the effect of the judgment adjudicating plaintiff to be a mental incompetent was no more than to create a rebuttable presumption of his continuing incompetency, its effect on tolling a statute of limitations cannot depend on the adjudication of incompetency without more, but ultimately turns on whether plaintiff was in fact mentally incompetent. Compare Woodruff v. Shores, 1945, 354 Mo. 742, 190 S.W.2d 994. Ironically, in order to recover on the merits of his claim against the defendants, the plaintiff would probably have to prove just the opposite, that is, that he was mentally competent.

In his brief on appeal, the plaintiff urges a theory different from that stated in his amended complaint for tolling the statute of limitations:

“The transaction beginning on September 16, 1965, when the appellant was arrested and confined in jail pending the hearing on his competency, and running until he was released from Escambia Hospital on August 30, 1965, as ‘. . . competent . . .’ was all one uninterrupted continuous transaction. For a period of fourteen days the appellant was uninterruptedly confined as an incompetent. The judicial machinery had been set in operation by the petition of his wife and was continuing to grind out the ‘mental examination,’ the hearing, the reevaluation by the hospital staff at Escambia General Hospital, and ultimately his release from that hospital. The relevance of these facts to the subissue here being considered is simply that after fourteen days of confinement culminating in his release and armed with the letter from the examining physician from the hospital, the appellant left the hospital under the impression that all the wrongs had been corrected by his release. Some ten months later when he attempted to register to vote and was told that he could not vote because he was still incompetent he realized that he had in fact been injured by the negligent acts of the defendants. It was May of 1966 when he registered to vote that the appellant learned for the first time of his injury. It is his contention under the facts and the law that the statute of limitations, whatever its length, did not begin to run until this time.”

(Plaintiff’s brief, p. 21.)

We do not agree. Assuming arguendo that defendants have no immunity, plaintiff’s amended complaint clearly stated injury by false imprisonment during the period that he was forcibly confined in the Escambia Hospital. Beckham v. Cline, 1942, 151 Fla. 481, 10 So. 2d 419.

However, even if plaintiff were sound in his argument that the statute of limitations did not begin to run until May, 1966, he then delayed until June 28, 1971, that is for more than four years, before filing his original complaint against the defendants. Even the plaintiff does not contend for a period of limitations longer than four years.

In a third theory advanced by plaintiff, he relies upon Mizell v. North Broward Hospital District, 5 Cir. 1970, 427 F.2d 468, to insist that the limitation period was tolled during the pendency of the state proceeding to vacate the incompetency order. That proceeding extended over a period of one year and ten months. If that time is deducted from the total period of delay, plaintiff would be charged with a culpable delay of more than three but less than four years. We forego discussing why, in our opinion, plaintiff’s reliance on Mizell is misplaced, because we reject plaintiff’s attempted differentiation of Nevels v. Wilson, 5 Cir. 1970, 423 F.2d 691, and adhere to the holding of that case that the three-year statute is applicable to claims under 42 U.S.C. § 1983. In Mills v. Small, 9 Cir. 1971, 446 F.2d 249, cited by the district court, the Ninth Circuit also adopted a state statute which covered a liability “created by statute.”

If we have not discussed all of the arguments to avoid the limitations bar which the admirable ingenuity of plaintiff’s present counsel has developed, we have considered them all and have found each insufficient. The judgment is

Affirmed.

      . “The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”

      . “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . Under Rule 12(b)(6), F.R.Civ.P.

      . The part of plaintiff’s amended complaint which we have emphasized tracks the following language in 14A. F.S.A. § 394.22 (6) (a) :
      ‘•The examining committee, within a reasonable time after notice of their appointment, shall proceed to make such examination of said person as will enable it to ascertain thoroughly his mental and physical condition as of the time of the examination.”

      . See Rule 12(b)(6), F.K.Civ.P.

      . Attached to plaintiff-appellant’s brief are 17 exhibits consisting of certified copies of documents from his “Inquisition of Incompetency” and from the proceedings in the Florida state courts on his “Petition to Void Order Adjudging Incompetency.” The defendants moved to strike these exhibits because they are not a part of the record in this case, were never a part of the proceedings in the district court, and were not considered by the district judge. The plaintiff responded, insisting that the exhibits are relevant and are simply the documents which reflect the facts and the judicial findings of the state courts. Prior to submission of this appeal, we ordered that the defendants’ motion to strike be carried with the case. Now we find that the exhibits are not essential, and that this appeal cud be and is determined on the strict record alone. The defendants’ motion to strike is therefore practically moot, and need not be decided. However, we note that plaintiff gets the benefit of most of the exhibits because their substance is reflected in one or the other of two published opinions of the District Court of Appeal of Florida, First District, dated respectively January 20, 1970, 230 So.2d 480, and June 18, 1970, 237 So.2d 55.

      . Freund v. Insurance Co. of N.A., 5 Cir. 1967, 370 F.2d 924; Mills v. Small, 9 Cir. 1971, 446 F.2d 249; 5 Wright & Miller, Federal Practice & Procedure § 1270, pp. 289, 300 n. 6, § 1226, p. 101 n. 11.

      . “95.20 Real actions; adverse possession against persons under disability

      “(1) If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title shall descend or accrue, either:
      “(a) Within the age of twenty-one years;
      “ (b) Insane; or
      “(c) Imprisoned,
      The time during which said disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced, or entry or defense made, within the period of seven years after such disability shall cease, or after the death of the person entitled who shall die under such disability ; but such action shall not be commenced, or entry or defense made, after that period.
      “(2) But adverse possession as hereinbefore defined for thirty years shall confer title even as against persons under the disabilities mentioned in this section.
      “(3) A married woman may prosecute any action concerning her land, in her own name, and without joining her husband.” 7 F.S.A.1972 P.P.


author: OAKES, Circuit Judge:

text:
    ABBOTT REDMONT THINLITE CORPORATION, Plaintiff-Appellant, v. Rudolph R. REDMONT and Circle Redmont Corporation, Defendants-Appellees.
    No. 338, Docket 71-1565.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 16, 1973.
    Decided March 13, 1973.

      Jerrold Morgulas, New York City (M. Carl Levine, Morgulas & Foreman, New York City, of counsel), for plaintiff-appellant.
    David F. Dobbins, New York City (Royall, Koegel & Wells, New York City, of counsel), for defendants-appellees.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

The issue here presented is whether the appellees, Rudolph R. Redmont and Circle Redmont Corporation, deprived the appellant, Abbott Redmont Thinlite Corporation, of a business opportunity in which it had a “tangible expectancy,” and thereby violated Redmont’s obligations as a former officer-employee of appellant. Burg v. Horn, 380 F.2d 897, 899 (2d Cir. 1967); Blaustein v. Pan American Petroleum & Transport Co., 293 N.Y. 281, 300, 56 N.E.2d 705, 713-14 (1944); Guth v. Loft, Inc., 23 Del.Ch. 255, 270-71, 5 A.2d 503, 510-11 (Sup.Ct.1939); see I. Hornstein, Corporation Law and Practices § 441. This court’s jurisdiction rests on diversity of citizenship. 28 U.S.C. § 1332. The opinion below is reported at 324 F.Supp. 965 (S.D.N.Y.1971).

Appellee Redmont, who had previously worked in the glass block business, joined appellant Abbott in 1960 as president of Abbott Redmont Thinlite Corporation. Abbott Redmont’s business consisted of furnishing and installing glass block skylights, including toplights (glass blocks set in aluminum grids, generally used in schools) and rooflights (glass blocks set in anti-corrosive concrete grids, generally used in sewage plants). The method used to sell these lights was to discover through trade journals and other sources what construction projects were in the course of design. Once aware of this, Abbott would contact the architect who was in the process of working up the designs for those projects, and attempt to convince him to write into the design the use of skylights and other specifications which Abbott’s products line would fulfill. Part of appellee Redmont’s job was to contact such architects and to convince them of the advisability of employing Abbott’s products in their final design. As of the time in question, up to and including the date when Redmont quit his employ with Abbott and began his own company, Circle Redmont Corporation (Circle), Abbott was the sole distributor in the metropolitan New York area for the particular products with which this action is concerned. Therefore, once the proper requirements were, or named product was, written into the architect’s specifications, to all intents and purposes Abbott was assured of the required subcontract. Once Abbott’s products had been incorporated into the plans and specifications by the architect, the projects were then in the regular course put out for bid to general contractors. When the general contractor was chosen Abbott would enter into a formal subcontract with the general contractor to furnish and install the Abbott product.

There are five projects here involved. Appellee Redmont, while in the employ of Abbott, had proceeded to contact the architects for each of these five projects and to write Abbott product specifications into each of the projects. In each case Redmont had also prepared a bid for submission to the general contractor who had been successful in obtaining the general construction contract (or the owner himself if the owner chose to build without a general contractor). Redmont concededly retained knowledge of the amounts of the bids which he had prepared while in Abbott’s employ after his employment ceased.

In early 1966 Owens-Illinois, the producer of the glass block used in all of Abbott’s products, announced that it was discontinuing the production of glass block. Soon afterward, in February, 1966, Products Research Corporation (PRC), which made the aluminum grids for the toplights and inserted the Owens-Illinois glass block in the grids and from which Abbott purchased the complete toplight sections, informed Abbott that as a result of Owens-Illinois’ action, it was leaving the glass block business.

In March, 1966, George Abrams, executive vice president of Abbott, told Redmont that if he wanted to stay with Abbott he would have to take a cut in salary. As an alternative Abrams offered Redmont the opportunity of buying Abbott’s rooflight inventory at cost and going into business for himself. Redmont and Abrams entered into a series of negotiations concerning (1) the possibility of an agreement whereby Redmont would purchase appellant’s roof-light inventory; and (2) the possibility that Redmont would assume all of appellant’s outstanding skylight contracts and share the profits. None of Abbott’s proposals were acceptable to Redmont and he left Abbott'on April 1, 1966.

Meanwhile Abbott had put in protective orders with PRC for the four top-light jobs as to which it now seeks an accounting. On May 18, 1966, however, PRC sent a letter to Abbott referring to these and other orders from Abbott “which we have not entered because we have received no shop drawings,” and advising Abbott that a failure to receive shop drawings by June 6, 1966, would result in a cancellation of the orders. There is no evidence that Abbott ever found another supplier of either roof-lights or toplights after June 7, 1966, or that it furnished shop drawings to PRC by the deadline date of June 6, 1966.

Redmont, meanwhile, had established his own company, Circle, and had found another source of supply for rooflights and toplights. On the dates given below, Redmont, acting by and for Circle, entered into contracts for toplight and rooflight work on projects for which he had persuaded the architects to write in Abbott product specifications while working for Abbott:

As stated, the central questions for determination here are whether Abbott Redmont Thinlite Corporation had a “tangible expectancy,” Burg v. Horn, supra, 380 F.2d at 899, in the five contracts listed above and whether Redmont violated his fiduciary duty by diverting that expectancy to his own profit. Although Redmont had left the employ of Abbott at the time he contracted with the general contractors for these projects, he was taking advantage of a corporate opportunity which he had helped obtain for Abbott and which would have almost certainly been Abbott’s but for Redmont’s departure. Redmont, we believe, had an obligation which carried over after he left Abbott not to exploit projects which would have clearly brought profits to Abbott but for his competition. Cf. Guth v. Loft, Inc., supra; Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, J.) (joint venturers). S. W. Scott & Co. v. Scott, 186 App.Div. 518, 174 N.Y.S. 583 (1919), relied on by the court below for its conclusion to the contrary, dealt with insurance underwriting and soliciting, a highly competitive business and one in which “expectancies” were hardly “tangible.” Here, on the other hand, until Redmont went into business there was no competition and once Abbott’s specifications were written into the architect’s plans it was almost a certainty that Abbott would get the final subcontract to install its lights. While occasionally the architect’s specifications would be changed, the record shows that this happened very rarely. Thus, it was not merely an “expectancy,” but almost a certainty that Redmont’s work on these five deals would secure the final contract for Abbott. In Scott the employee took no business from his employer which would not likely have been won away by some other underwriter once the employee departed. Redmont did take business which, but for his entry into direct competition with Abbott, would have been Abbott’s if Redmont had not departed. Concededly, this difference in degree of likelihood of realizing income diverted by the alleged fiduciary resulted from the difference in the market structure here and that in Scott.

The degree of likelihood of realization from the opportunity is, however, the key to whether an expectancy is tangible. A Massachusetts opinion with which we agree, and believe New York courts would agree if presented with the issue, American Window Cleaning Co. v. Cohen, 343 Mass. 195, 201, 178 N.E.2d 5, 9 (1961), bears this out in holding that knowledge that a pre-contract relationship between an employer and an irregular customer was likely to ripen into contract was “special corporation information” and cannot be exploited by an ex-officer of the corporation.

The high degree of likelihood that, but for Redmont’s competition, Abbott would have been awarded these contracts is combined here with the fact that Redmont benefited by information as a result of his employment at Abbott —knowledge of the details of the specifications, knowledge of the contractor’s requirements, knowledge of Abbott’s probable costs — which made Abbott peculiarly vulnerable to his competition on the specific deals here in question. While this is not the kind of information that, like customers’ lists, is “confidential” in the sense of the term that might in and of itself create liability on use, Restatement, Agency (Second) § 396(b) and Comment (1958), it was information obtained in the course of his employment. A former employee may, of course, go into competition with his ex-employer and can use general information concerning the method of business and names of customers of his ex-employer in his new venture. Id. But he cannot, as here, utilize specific information he obtained during his employment to deprive his ex-employer of customers with whom he knows a deal is in the process of completion. The use of specific information on deals in progress obtained while in Abbott’s employ, and the degree of likelihood that but for Redmont’s competition Abbott would have been awarded the contract, dictate our holding that Redmont violated his fiduciary obligations to Abbott by submitting competing bids.

But Abbott had a “tangible expectancy” in the four toplight contracts only until June 7, 1966, when PRC can-celled Abbott’s toplight orders, leaving Abbott without a source of supply. Abbott had ample warning from PRC that these orders would be cancelled if Abbott did not submit shop drawings to PRC by June 6, 1966. Abbott’s failure to submit the requested drawings constitutes intentional abandonment, cf. International News Service v. Associated Press, 248 U.S. 215, 240, 39 S.Ct. 68, 63 L.Ed. 211 (1918); Foulke v. New York Consolidated Railroad Co., 228 N.Y. 269, 273, 127 N.E. 237, 238 (1920), of its contract rights in the toplight projects on which contracts were signed after that, i.e., the Junior High School 144 project and the Riverdale Girls School project. It is not clear from the record how long Abbott retained its supply of glass blocks for rooflights for the Manhattan Pumping Station, the one roof-light project after Owens-Illinois went out of the glass block business. Absent any such supply, Abbott cannot complain of any loss by misappropriation of its “opportunity” since it would have abandoned the opportunity in any event. On this the record is not clear.

We reverse as to the Plainfield Public Library and Oakland High School projects, affirm as to the Junior High School 144 and Riverdale Girls School projects, and remand for further findings in respect to the Manhattan Pumping Station project and for the award of damages in accordance with this opinion.

      . Job Type

      Plainfield Library ......... Toplight
      Oakland High School...... Toplight
      Junior High School 144 .... Toplight
      Riverdale Girls School...... Toplight
      Manhattan Pumping Station Rooflight

      . For “rooflight” jobs, Abbott bought its own glass block directly from Owens-Illinois.

      . Corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests. While technically not trustees, they stand in a fiduciary relation to the corporation and its stockholders.....The rule that requires an undivided and unselfish loyalty to the corporation demands that there shall be no conflict between duty and self-interest. The occasions for the determination of honesty, good faith and loyal conduct are many and varied, and no hard and fast rule can be formulated ....
      If an officer or director of a corporation, in violation of his duty as such, acquires gain or advantage for himself, the law charges the interest so acquired with a trust for the benefit of the corporation, at its election, while it denies to the betrayer all benefit and profit ....
      The rule, referred to briefly as the rule of corporate opportunity, is merely one of the manifestations of the general rule that demands of an officer or director the utmost good faith in his relation to the corporation which he represents.
      Guth v. Loft, Inc., 23 Del.Ch. 255, 270-71, 5 A.2d 503, 510 (Sup.Ct.1939).

      . The dictum in Duane Jones Co. v. Burke, 306 N.Y. 172, 189, 117 N.E.2d 237, 245 (1954), which suggests the defendants there would not have been liable had they waited to compete until after they left Duane Jones Co. is not to the contrary. In fact the defendants there had not waited to compete until they left the company. Nothing in the opinion deals with the question what the rule of law would be had this factual showing of pre-separation competition not been made.


author: PER CURIAM: WINTER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. David Wayne GLOVER, Appellant.
    No. 73-1052.
    United States Court of Appeals, Fourth Circuit.
    March 21, 1973.
    Frederick D. Greco, McLean, Va. (Court-appointed counsel), on brief, for appellant.
    Brian P. Gettings, U. S. Atty., David H. Hopkins, Asst. U. S. Atty., on brief, for appellee.
    Before WINTER, CRAVEN, and BUTZNER, Circuit Judges.
   PER CURIAM:

David Wayne Glover was convicted following a plea of guilty of conspiracy to counterfeit obligations of the United States in violation of 18 U.S.C. § 371 (1969). His case was referred to the probation officer for a presentence report and the ensuing sentence of the court was for three years.

Glover’s attorney does not seek a copy of the presentence report; rather, he speculates that the sentence must have been imposed on the basis of inaccuracies in the report.

Our examination of the presentence report, Baker v. United States, 388 F.2d 931, 933 (4 Cir. 1968), and the transcript does not disclose the presence of false or misleading information that would constitute a violation of due process in the several respects suggested by counsel. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).

Accordingly, we dispense with oral argument and grant the government’s motion for summary affirmance.

Affirmed.

WINTER, Circuit Judge

(concurring specially):

My own views that a presentence report should be freely exhibited to counsel for a defendant have been previously expressed in my special concurrence in Baker, and I continue to adhere to them. I join in the judgment of the court, but I call attention to the fact that this case is a good example of two additional reasons why disclosure should be the rule rather than the exception. First, if full disclosure is withheld, appellate review to determine if Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) has been met, as suggested in the majority opinion in Baker, 388 F.2d at 933, is stimulated. What lawyer, court appointed or privately employed, would forego such review when he may be charged with incompetence for failure to invoke it should it subsequently be established that the sentencing judge relied upon erroneous data in the presentence report? Second, and intimately connected with the first consideration, unmeritorious appeals are encouraged. This appeal has been found to be lacking in merit. But how can counsel be expected to exercise professional judgment in advising whether an appeal should be taken when he is denied access to the facts on which to base his judgment? Current workloads show clearly that additional appeals, and especially unmeritorious additional appeals, are the last things which should be encouraged.


text:
    UNITED STATES of America, Appellee, v. James Edward BROWN, Appellant.
    No. 71-2451.
    United States Court of Appeals, Ninth Circuit.
    Feb. 27, 1973.
    Robert L. Bouchier (argued), Palo Alto, Cal., for appellant.
    Michael C. Solner, Asst. U. S. Atty. (argued), Eric A. Nobles, Darrell W. MacIntyre, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
    Before CHAMBERS, KOELSCH and KILKENNY, Circuit Judges.
   PER CURIAM:

Appellant was convicted of armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d).

The lower court denied appellant’s motion to suppress certain items seized shortly after his arrest.

Appellant claims that the government failed to establish probable cause for his arrest because the warrant and its supporting affidavit were not presented and no independent evidence of probable cause was introduced.

Under these circumstances, the interests of justice require remand for the limited purpose of determining the existence of probable cause. United States v. Smith, 456 F.2d 1236 (CA9 1972). At the hearing on remand additional evidence may be presented by both sides on the issue of probable cause.

We find appellant’s other contentions to be without merit.

Remanded for further proceedings consistent with this opinion.