Staley, Chief Judge, and Gerald McLaughlin, Kalodner, Hastie, Freedman, Seitz and Van Dusen, Circuit Judges. Seitz, Circuit Judge (concurring). Gerald McLaughlin, Circuit Judge (dissenting). Van Dusen, Circuit Judge (dissenting).
Did the District Court abuse its discretion in failing to accord a requested hearing to the appellant on his petition for reconsideration of sentence, (1) in the light of the reasons assigned by the Supreme Court of the United States for its affirmance of the judgment of conviction, and (2) the factual allegations of the petition for reconsideration relating thereto?
We are required, on this appeal, to decide this question only, and accordingly do not reach other contentions advanced by the appellant and the amici curiae.*fn1
Discussion of the question stated must be prefaced by this statement of its factual background:
In June 1963, the District Court, to whom the case was tried without a jury, found the appellant Ralph Ginzburg, and three corporations which he controlled, guilty upon 28 counts of an Indictment charging violation of the federal obscenity statute, 18 U.S.C.A. § 1461.*fn2 Counts 1 through 10 of the Indictment charged Ginzburg, and the particular corporate defendant named therein, with using the mails for the delivery of "nonmailable matter", consisting of promotional advertising literature, informing how and where a designated alleged obscene publication could be obtained. Counts 11 through 28, charged Ginzburg, and the particular corporate defendant named therein, with using the mails for the delivery of a designated "non-mailable" obscene publication. The publications concerned were "The Housewife's Handbook on Selective Promiscuity" ("Handbook"); "Eros", a magazine, and "Liaison", a biweekly newsletter.
Following the District Court's denial of the defendants' motions for Arrest of Judgment and, in the alternative, for a new trial, 224 F. Supp. 129 (E.D.Pa. 1963), and its subsequent imposition of a 5-year prison sentence and $28,000 fine as to Ginzburg, and fines aggregating $14,000 imposed on the corporate defendants, the defendants appealed. We affirmed at 338 F.2d 12 (3 Cir. 1964), and the Supreme Court of the United States did likewise at 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966), rehearing denied, 384 U.S. 934, 86 S. Ct. 1440, 16 L. Ed. 2d 536.
Ginzburg, thereafter, filed a petition for reconsideration of sentence in the District Court in which he prayed for (1) vacation, suspension or reduction of his sentence of imprisonment, and (2) a hearing at which he could present evidence in support of the petition. The Government, in its "Response" to the petition, did not deny any of its factual averments, and with respect to the petitioner's request for a hearing stated "it would seem appropriate that an opportunity to be heard be afforded", and "accordingly, the Government does not oppose the defendant's request for a hearing on the merits of his petition". The Government, in its Response, further stated that "it takes no position on that part of the defendant's motion which pertains to reduction of his sentence", and "insofar as defendant's motion papers request this Court to vacate or suspend his sentence, the Government respectfully urges this Court to deny the petition".
The District Court subsequently, without hearing, entered an Order denying the petition, and Ginzburg appealed. We affirmed, by a divided court, and thereafter granted rehearing by the court en banc.
What has been said brings us to the petition for reconsideration and the contentions with respect to it presented here.
Ginzburg's petition for reconsideration of sentence may be summarized as follows:
(1) The District Court found him guilty of violating the obscenity statute on its view that Handbook, Eros and Liaison were obscene per se, and its fact-findings that the "defendants" unsuccessfully sought Blue Ball, Pennsylvania and Intercourse, Pennsylvania, mailing addresses, and finally arranged the Middlesex, New Jersey mailing address, "in order that the postmarks on mailed material would further defendants' general scheme and purpose".
(2) The Supreme Court of the United States affirmed his conviction "because of the manner in which the publications had been advertised", and not on the ground that they were obscene per se, and "this basis for the Supreme Court's decision was new and unprecedented and a departure from pre-existing law, which had looked to the publications themselves in order to determine obscenity".
(3) Ginzburg had been advised by his trial counsel that the use of the mails for his publications "was lawful", and "because of the state of the law as it existed prior to the Supreme Court's decision", his counsel did not consider the mail applications to the various post offices "to be material", and for that reason did not have Ginzburg testify to the fact that he "had absolutely no part whatsoever and no mens rea in those Post Office applications".
(4) Ginzburg is "a first offender"; he "always has been a law-abiding hardworking member of the community"; he supports his wife and three children, widowed mother and blind sister; his [then] 12-year old daughter has been under psychiatric care since shortly after his sentencing and his imprisonment "will have a serious adverse effect on the child's mental health"; "he is a responsible and respected member of the publishing profession"; "he does not intend to and will not republish or redistribute the material which led to his conviction or any material of the same sort"; and, finally, he will adduce testimony in support of his factual allegations at a hearing on his petition for reconsideration of sentence.
On this appeal, Ginzburg contends that the District Court abused its discretion (1) in denying him a hearing on his petition for reconsideration; (2) in "arbitrarily and without reason" refusing to change his sentence; and (3) in refusing to make available to him the contents of the pre-sentence report received by the District Court prior to the imposition of his sentence.
The Government, in reply, urges that the District Court did not abuse its discretion in denying a hearing on the reconsideration petition and in denying the petition on its merits; and, further, that the District Court did not, in refusing inspection of the pre-sentence report, abuse the limits of its permissible discretion under Rule 32(c) of the Federal Rules of Criminal Procedure, assuming the rule to be applicable to a reconsideration of sentence proceeding.
As earlier stated, we will limit our present disposition to the single question as to whether the District Court abused its discretion in failing to accord the requested hearing to Ginzburg on his petition for reconsideration of sentence in the light of the prevailing circumstances.
These circumstances may be summarized as follows:
Prior to Ginzburg's conviction, the critical question in prosecutions under the federal obscenity statute centered on the published material itself -- was it obscene per se ?*fn3 Manual Enterprises Inc. v. Day, 370 U.S. 478, 489, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962); Roth v. United States, 354 U.S. 476, 488-489, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957).
In its Opinion in the instant case, the Supreme Court added a new ingredient to its previously declared " obscene per se " testing formula -- an ingredient which, acting as a catalyst, transforms published material which standing alone is not obscene per se, into obscene matter. That ingredient is "pandering" -- exploiting a publication, via promotional advertising or literature which represents it "as erotically arousing", and places "sole emphasis * * * on the sexually provocative aspects" of the publication.
The Supreme Court epitomized this ingredient in its Opinion as follows (383 U.S. pp. 475-476, 86 S. Ct. p. 950):
"Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation".
It must be noted on the score of the stated obscenity-testing formula that the Supreme Court expressed the view that it was merely an elaboration ...