United States v. Thomas C. Pellegrino

Appellant was indicted in fifteen counts for knowingly depositing, and causing to be deposited, for mailing envelopes containing obscene, lewd, indecent, lascivious and filthy advertisements in violation of 18 U.S.C. § 1461 . Thirteen of the fifteen counts were either dismissed prior to trial upon the Government’s motion or received judgments of acquittal from the trial court. Two counts went to the jury. Upon both appellant was convicted. The determinative question presented by this appeal is whether the material mailed was not, as a matter of constitutional law, obscene. We conclude that it was not obscene and that judgment must be reversed.

The material in question consisted of advertisements for two books. The books themselves are not accused. It is the content of the advertisements alone with which we are concerned.

The first book was entitled “Sex Tools for Erotic Pleasure.” The advertisement was a small, negligibly illustrated sheet. It promised much to the reader of the book and the purchaser of the “tools,” but itself revealed little. The Government informed the jury in closing argument that it would not urge the obscenity of this flyer “in and of itself.” And we have…