United States v. Obscene Magazines, Book and Advertising Materials, Eugene Schoenfeld, M.D., Claimant-Appellant

653 F.2d 381 UNITED STATES of America, Plaintiff-Appellee, v. OBSCENE MAGAZINES, BOOK AND ADVERTISING MATERIALS, et al., Defendants, Eugene Schoenfeld, M.D., Claimant-Appellant. No. 79-3300. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1981. Decided Aug. 10, 1981. Howard Gest, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Fred Okrand, Los Angeles, Cal., for claimant-appellant. Appeal from the United States District Court for the Central District of California. Before GOODWIN and ANDERSON, Circuit Judges, and GILLIAM, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 Dr. Eugene Schoenfeld has challenged the district court's determination that six magazines and one book sought to be imported by him were obscene and thus subject to forfeiture as provided by § 305 of the Tariff Act, 19 U.S.C. § 1305 . 2 The relevant portion of § 1305 provides that: 3 "All persons are prohibited from importing into the United States from any foreign country ... any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any…

J. BLAINE ANDERSON, Circuit Judge:

Dr. Eugene Schoenfeld has challenged the district court’s determination that six magazines and one book sought to be imported by him were obscene and thus subject to forfeiture as provided by § 305 of the Tariff Act, 19 U.S.C. § 1305 .

The relevant portion of § 1305 provides that:

19 U.S.C. § 1305 . It is well settled that the test for determining the obscenity of materials proscribed by 19 U.S.C. § 1305 is governed by Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973), and its progeny. United States v. 12 200-ft. Reels of Film, 413 U.S. 123 , 130 n.7, 93 S.Ct. 2665 , 2670 n.7, 37 L.Ed.2d 500 (1973); United States v. 2,200 Paper Back Books, 565 F.2d 566 , 569-70 (9th Cir. 1977). Before a publication can be adjudged obscene, the trier of fact must find that (a) “ ‘the average person, applying contemporary community standards,’ would find that the work, taken as a whole, appeals to the prurient interest;” (b) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;” and (c) “the work, taken as a whole, lacks serious literary, artistic, political, or…

specially concurring.

The district court found, in a more or less contested context, that the challenged books fit the Miller definition of obscenity and therefore that they were not eligible to enter this country under 19 U.S.C. § 1305 . We affirm and I concur.

The record made in the trial court fell short of presenting to the district judge an undeniable claim of a medical exception to § 1305. That question was presented 24 years ago to Judge Palmieri at a time when American “obscenity” law was beginning to take shape under the uncertain guidance of Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957). See United States v. 31 Photographs, etc., 156 F.Supp. 350 (S.D.N.Y.1957).

It will be recalled that in 31 Photographs the court was faced with the problem of a statute whose plain meaning excluded from importation into this country pictorial representations of erotic and reproductive behavior that the University of Indiana claimed it needed for scientific purposes. One can embroider at length upon the relationships between Dr. Kinsey’s research and various grades of pornography; but some relationship between art and science in the study of human behavior,…