Appellants Womack and Potomac News, Co., Inc. were indicted on twenty counts of interstate transportation of obscene matter in violation of 18 U.S.C. § 14621 and three counts of mailing nonmailable matter and information stating how and where obscene materials were to be obtained, in violation of 18 U.S.C. § 1461.2 A jury trial resulted in a verdict of guilty on twelve counts under § 1462 and on all three counts under § 1461.3 On this appeal three issues are raised: (1) the propriety of the exclusion by the trial court of a number of allegedly comparable magazines; (2) whether the eight magazines which formed the basis of appellants' convictions were obscene and not within the free speech guarantees of the First Amendment and (3) the validity of the search warrant under which the eight magazines were seized. In this opinion we consider only issues (1) and (3) and defer any opinion on (2) pending the decisions of the Supreme Court in Alexander v. Virginia, 212 Va. 554, 186 S.E.2d 43, cert. granted, 408 U.S. 921, 92 S. Ct. 2490, 33 L. Ed. 2d 332 (1972) and companion cases, involving similar issues which were argued on October 16, 1972.

Appellants were convicted on the basis of eight explicit 'magazines'4 apparently directed at an audience of homosexuals and pedophiles.5 The particular evidentiary issue on appeal involves appellants' attempts to introduce allegedly comparable materials6 into evidence for various purposes. Appellants contend they were denied due process of law in the District Court's refusal to admit any of the proffered exhibits. There has been a considerable amount of confusion in the courts as to the admissibility and function of comparison evidence in obscenity cases. Some jurisdictions have held it reversible error to reject such evidence, while others exclude it rather summarily.7 Some of this confusion, it seems, stems from an inability to distinguish the various purposes for which comparison evidence is sought to be introduced. In this case appellants urge three distinct purposes which we will consider separately.

Appellants contend that they should be allowed as a requirement of due process to present the proffered comparison exhibits to the jury as primary autoptical evidence in order that the jury may compare materials previously held nonobscene by other courts (including the United States Supreme Court) to the exhibits which are the subject of the instant prosecution. This is clearly incorrect and involves a basic misconception of the respective roles of judge and jury. In essence it demands that the jury perform the judge's task of determining whether this issue should be disposed of as a matter of law. That is, it requires the jury to interpret the effect of a previous holding of nonobscenity as it bears on the issues of the present case. Can it possibly be said that the jury is competent to interpret the stare decisis effect of various decisions, analyze the grounds of their holdings and distinguish them on their facts?8 This is clearly beyond the province of the jury and is a basic function of the judge. When presented with a motion for a judgment of acquittal under Fed.R.Crim.P. 29, the judge properly should compare the evidence in the instant case with that held nonobscene by the controlling authority of that jurisdiction. If the matter held nonobscene by such courts, in his opinion, equals or exceeds9 the evidence at issue, a judgment of acquittal should certainly be entered.

A number of cases which uphold the refusal to admit comparison evidence have nevertheless approved its use in this manner by the judge. This was noted in this court's decision in Huffman v. United States,152 U.S.App.D.C. 238, 470 F.2d 386 (1971), petition for rehearing granted on other grounds Aug. 10, 1972:

We do not say that decisions involving other publications can play no part in the evaluation of a particular magazine or book. Certainly a judge passing on the legal 'obscenity' of material before him will consider whether it is so close to others already passed on by the courts as to require a judicial ruling on obscenity without submission to the jury.

152 U.S.App.D.C. at 255--256, 470 F.2d at 403--404 (emphasis added).10 Similarly, in United States v. 392 Copies of Magazine 'Exclusive,' 253 F. Supp. 485 (D.Md.1966), aff'd 373 F.2d 633 (4th Cir. 1967), the court expressly left open the question of comparison evidence in a jury trial but concluded that such material from prior 'adjudicated cases, whether held obscene or not obscene, should always be considered by the Court as illuminating the opinions rendered in those cases, and the items offered have been so considered.' 253 F. Supp. at 495. The use of comparative material to determine obscenity as a matter of law also is appropriate at the appellate level.11

Therefore the trial court clearly was correct in retaining this comparative legal method solely as his function and refusing to lay it before the jury. Furthermore, on review of the relevant exhibits we hold that the proffered evidence held nonobscene by the Supreme Court is not sufficiently similar to the exhibits at issue at trial as to have required a judgment of acquittal to be entered as a matter of law nor to require our reversal on appeal.12

Appellants also sought to introduce comparative evidence to aid the jury in determining the prevailing contemporary community standards.13 The District Court excluded all of defendants' proffered exhibits, applying the doctrine enunciated by this court in Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, cert. denied, 365 U.S. 859, 81 S. Ct. 826, 5 L. Ed. 2d 822 (1961).14

In Womack, a broad range of comparison materials were proffered by the defendant in an effort to show a contemporary community standard of general acceptance of works like his own. The court rejected the comparison evidence as immaterial where the proper foundation had not been shown. Judge Prettyman described the necessary foundation as consisting of two elements: '. . . that the two types of matter are similar. And as another part of his foundation he must show a reasonable degree of community acceptance of works like his own.' 111 U.S.App.D.C. at 10, 294 F.2d at 206. Appellants contend that this should not be the rule in modern obscenity prosecutions since in the Womack case there was such a wide divergence between the proffered exhibits and the materials that were the subject of that prosecution.15 While it is true that the comparison evidence offered in the instant case is not as vastly different from the materials at issue in the trial as in Womack, this fact in no way undermines the soundness of the Womack test. The foundational requirements established in that case are eminently logical prerequisites under traditional concepts of materiality and relevancy.16 Moreover, the Womack test has recently been applied in this circuit in Huffman v. United States17 and has been explicitly adopted by a number of other circuits as well as in some state jurisdictions.18

We are fully cognizant of the notion that expert testimony on contemporary community standards is desirable and may even be a necessary requirement of due process. Most of the impetus behind the use of expert testimony in obscenity cases can be traced to the concurring opinions of Justices Harlan and Frankfurter in Smith v. California, 361 U.S. 147, 160, 169, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959). Those opinions indicated that due process may require some kind of expert testimony to enlighten the court on the community standards element of the Roth test. Justice Harlan's opinion alludes specifically to the use of comparison evidence.19 Many other decisions have echoed this position on the need for objective guidelines to help the court reach a rational decision under the admittedly imprecise Roth formula.20 Yet it is clear that the Womack test is perfectly compatible with the Smith policy and many cases adopting the Womack rule have excluded comparative evidence while simultaneously recognizing the validity of the Smith rationale.21 In this case this inherent consistency is exceedingly apparent. There was in fact extensive expert testimony on both sides as to contemporary community standards. That is all that the Harlan and Frankfurter opinions can be read to have required. As the Sixth Circuit has stated in this regard:

(W)e are not unmindful of the relevant observations of Justices Frankfurter and Harlan in their concurring opinions in Smith v. People of State of California, 361 U.S. 147, 164, 165, 172, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959). We do not content ourselves by saying that those concurrences did not necessarily express the majority view, but are agreed that what the District Judge did in this case (excluding comparison evidence under Womack) does not offend the views of those distinguished Justices. We consider that their suggestions of a legitimate range of admissible expert testimony were satisfied by what the experts here were allowed to tell the jury.

United States v. West Coast News Co., 357 F.2d 855, 859 (6th Cir. 1966), rev'd sub nom. on other grounds, Aday v. United States, 388 U.S. 447, 87 S. Ct. 2095, 18 L. Ed. 2d 1309 (1967). The Smith concurring opinions were in no way intended to eliminate valid, rational rules governing the admissibility of evidence.

Womack merely requires an adequate foundation to be laid for the introduction of comparison evidence. Since the issue at hand is the nature of contemporary community standards with respect to 'works like his own,' in order for there to be a rational basis for its admission there must be a showing that the proffered evidence (1) is similar to his own, and (2) enjoys a reasonable degree of community acceptance. The burden is on the defendant22 and in the absence of such a showing,23 the evidence must be excluded as lacking sufficient probative value.24 In this regard the trial judge must be allowed 'wide discretion as to whether to permit the introduction of such allegedly comparable publications' since 'the admission of a number of different publications alleged to be comparable to the publication in issue might make the trial unmanageably complex and lengthy.'25

We have carefully reviewed the various exhibits involved in this case and hold that the trial judge did not abuse his discretion in excluding all the proffered comparison evidence. Most of the evidence sought to be introduced was simply unsusceptible of a convincing showing of similarity to the defendants' works. In this connection it is important to realize that 'slight' variations in format may well produce vastly different consequences in obscenity determinations. This court, in Huffman, recently surveyed the state of obscenity law and observed with regard to photographs of males that various factors such as indoor activity as opposed to out-door nudism and 'duals' as opposed to singles,'26 result in wholly different legal characterizations.27 In Huffman, the defendant sought to introduce magazines picturing 'singles' for comparison with his works which included 'duals.' We held:

These magazines . . . fall within the category of 'singles'. As discussed above, this type of magazine is clearly distinguishable from the genre involved here. . . . Once the judge declines to dismiss the prosecution on legal grounds (see part A, supra) we think it becomes a matter of sound discretion, that takes into account relatedness and remoteness, whether it is more likely to be helpful or confusing for the jury to make comparisons with publications passed on in previous cases. In view of the important distinctions between the 'duals' photographs in the magazines on trial and the singles in previous cases, we hold the judge did not abuse his discretion in ruling against appellants on this issue. Womack v. United States, 111 U.S.App.D.C. 8, 10, 294 F.2d 204, 206 cert. denied, 365 U.S. 859 (, 81 S. Ct. 826, 5 L. Ed. 2d 822) (1961).28

Turning to the evidence offered by appellants for comparison purposes in this case, we find that two of the magazines are labeled as marriage manuals and depict heterosexual activity between adults. Another magazine portrays heterosexual acts between adult members of different racial groups. Yet another magazine shows nude and partially nude females in various erotic poses. Appellants also proffered an illustrated version of the Report of the President's Commission on Obscenity containing pictures which run the gamut of bestiality to normal heterosexual activity. The remaining magazines and ten posters depict adult males in various stages of nudity. Many of them portray scenes from the day-to-day life at nudist colonies, while others portray the physiques of weight lifters. Appellant seeks to draw our special attention to certain particular exhibits alleged to be the most similar to those at issue here.29 Yet on examination we find that they too are vastly dissimilar to his publications. Unlike the subject matter of this prosecution, there are no pictures of young boys in 'duals' caressing and fondling one another in various positions of simulated sexual activity. Some of the proffered evidence does include young boys in groups but only photographed out-of-doors and containing no suggestion of sexual activity.30 Under these circumstances we hold the trial judge was well within his wide discretion31 in excluding these exhibits on grounds of insufficient similarity.

Appellant also had sought to introduce eight magazines published by one of their 'competitors' (Tr. 673) which clearly meet the test of similarity.32 With respect to these eight exhibits the Government contends, however, that appellants failed to meet their burden of showing a reasonable degree of community acceptance as required by the second element of the Womack test. This issue has arisen in a number of obscenity cases in which the defendant has sought to introduce similar material purchased in the community in an effort to show a degree of community tolerance and acceptance for works like his own.33 Of course, a determination of the precise point at which a publication is so widely sold and is so generally available in the community as to warrant a finding of community acceptance is difficult to fix with assurance. And a few cases have held that in close cases it is error to exclude such comparison materials.34 However, it is not difficult to identify that which clearly does not even approach an appreciable level of community acceptance and to exclude that material as possessing so little probative value as to serve only to impede the resolution of the issues. A distinction must be made between a showing of 'mere availability' and that of 'a reasonable degree of community acceptance:'

Evidence of mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in the absence of proof that the material enjoys a reasonable degree of community acceptance. Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, 206 (1961), cert. denied, 365 U.S. 859, 81 S. Ct. 826, 5 L. Ed. 2d 822 (1961). Such proof would normally be supplied by expert witnesses. No such proof was offered. In the absence of this foundation, the allegedly similar pornographic material was properly excluded. Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.

United States v. Manarite, 448 F.2d 583, 593 (2nd Cir. 1971). In our case, appellants spoke of the materials as having been easily purchased from certain specific suppliers in New York. Yet such esoteric materials purchased from a few vendors known only to those in the trade with no general circulation are not probative on the issue of contemporary community standards. This was well stated in the 'Exclusive' case:

The standards of 'the Block' (an area in Baltimore in which there are a number of shops which deal in pornographic materials) are not the standards to be applied in this case, any more than the standards of the most straight-laced persons. Material purchased in such specialized outlets has little or no value in determining contemporary community standards. Ginzburg v. United States, (383 U.S. 463,) 86 S.Ct. (942,) 969 (,16 L. Ed. 2d 31) (1966).35 (Emphasis added.)

The only evidence appellants offered to show community acceptance of these magazines was the fact that as of the date of this trial, no criminal charges had been lodged against their competitors (Tr. 673--75), but mere failure to prosecute does not begin to constitute a sufficient showing on this issue. We hold that with respect to these magazines, appellants have woefully failed to show a reasonable degree of community acceptance. Without such evidence the trial judge can in no way be said to have abused his discretion in excluding the proferred evidence.

Finally, appellants argue that at the very minimum, comparison evidence should be allowed to be presented to the various expert witnesses on the issue of community acceptance, particularly for cross-examination purposes.36

The use of comparative evidence for direct testimonial purposes on she issue of contemporary community standards is clearly governed by the resolution of the issue of its use as primary autoptical evidence. See Part B, supra. That is, once the court has determined under the Womack guidelines that the probative value of the comparison evidence is insufficient to be material on the issue of community standards, it is equally within the judge's discretion, indeed almost incumbent upon him for reasons of consistency, to exclude the introduction of such evidence through the expert witnesses.37

A more difficult question is whether such materials are to be used for cross-examination purposes. It may indeed be helpful for the jury to know that the expert witness holds an opinion contrary to that of the Supreme Court.38 Apparently one case in this jurisdiction has allowed such use of comparative evidence.39 However, this is definitely a matter in which the trial judge is to be afforded wide discretion. As Judge Wyzanski has said in a First Circuit decision upholding the trial judge's discretionary exclusion of allegedly comparable material as well as his refusal to allow expert testimony with respect to them:

Nor is a judge required to admit as a touchstone for the jury even those books which are admittedly not obscene. The admission of a number of different publications alleged to be comparable to the publication in issue might make the trial unmanageably complex and lengthy. The trial judge must be allowed wide discretion as to whether to permit the introduction of such allegedly comparable publications, and as to whether to allow the witnesses to be examined in detail on publications other than the one directly at issue.40 (Emphasis added.)

Not only do the dangers of excessive trial length, complexity and unmanageability weigh heavily in favor of according the trial judge broad discretion, but also the undesirability of allowing the jury to speculate as to the basis for a Supreme Court holding of nonobscenity. That is, in light of the various factors that enter into a legal finding of obscenity and the generally confusing state of this area of law at the time of this trial,41 it is clearly a matter of broad discretion for the trial judge to balance the dangers of jury confusion against the possible benefits of effectively undermining the credibility of a given witness.42 In this case the decisions referred to by appellant in which the comparison evidence was held nonobscene were particularly cryptic and to infer a lack of credibility from any inconsistencies between the expert and that decision would be highly speculative and confusing to the jury. Even absent this factor, the judge is always to be allowed broad discretion as to such testimonial matters.43 We hole here that the judge properly exercised that discretion.

Therefore, with respect to the issue of comparison evidence as a whole, we affirm the rulings of the trial court.

Appellants raise three objections to the warrant used to seize the various incriminating materials involved in this case. The warrant is claimed to be invalid (1) on its face for overbreadth, (2) for lack of a prior adversary hearing, and (3) as calling for a search for 'mere evidence' as distinguished from a search for fruits or implements of crime. We find all three objections to be wholly without merit and decline to reverse the convictions on these grounds.

First, there can be no serious claim that the warrant was impermissibly vague as to the items to be seized. The warrant incorporates by express reference the underlying affidavit attached thereto which quite specifically details the records and documents to be obtained in the search. Under these circumstances, we have held the warrant to meet the necessary specificity requirements.44 Although during execution of the warrant some other materials were seized, all of them were returned and none were used at appellants' trial.45 This clearly does not affect the validity of appellants' convictions.46

Second, the requirement of an adversary hearing prior to the issuance of a warrant is derived from Supreme Court decisions47 holding that the public's First Amendment rights would be jeopardized if a judge were allowed to suppress large numbers of copies of an allegedly obscene publication simply on the basis of an ex parte decision on the issue of obscenity. This authority is clearly inapposite here since this search warrant did not authorize the seizure of any materials protected by the First Amendment but only business records and other correspondence relating to the publication, sale and distribution of the magazines listed in the affidavit and the identity of some of the models.48

Lastly, appellants' 'mere evidence' argument and citation of the Gouled case49 is entirely inappropriate in light of the Supreme Court's complete disavowal of that doctrine in Warden v. Hayden, 387 U.S. 294, 300--310, 87 S. Ct. 1642, 1646--1651, 18 L. Ed. 2d 782 (1967) in holding there was no valid basis for prohibiting 'intrusions to secure 'mere evidence" and permitting 'intrusions to secure fruits, instrumentalities, or contraband.'

Had we reached opposite conclusions on either the evidentiary or the search and seizure issues involved in this case, we would have reversed the convictions. However, since we have upheld the trial court on these issues, we release this opinion at this time and order that the case be held in abeyance with respect to the First Amendment issues to await the decision of the Supreme Court in the pending obscenity cases.

Order accordingly.

On December 7, 1972, this court issued an opinion disposing of the evidentiary issues presented by these appeals. That decision deferred action on the following issue:

whether the eight magazines which formed the basis of appellants' convictions were obscene and not within the free speech guarantees of the First Amendment

pending the decisions in several obscenity cases then before the Supreme Court. Original Op., supra, at 372. The decisions in those cases have since been issued. Miller v. California, 423 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973); Alexander v. Virginia, 413 U.S. 836, 93 S. Ct. 2803, 37 L. Ed. 2d 993 (1973). We now dispose of the remaining issue.

Miller, supra, established the following three tests for determining whether a work is obscene:

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . .

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24, 93 S. Ct. at 2615. Appellants are entitled to the benefit of any constitutional principle stated in Miller. See Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). Only Miller test (b) involves modifications of prior principles which would potentially benefit appellants.1

Appellants were convicted for violations of 18 U.S.C. § 1461 (mailing obscene matter) and § 1462 (interstate transportation of obscene matter). In Hamling, supra, the Court held that section 1461 was not unconstitutionally vague in light of the prior construction of that section in Roth v. United States,354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and therefore the statute was sufficient to support a conviction under Miller test (b). In United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7, 93 S. Ct. 2665, 2670, 37 L. Ed. 2d 500 (1973), the Court indicated it was prepared to construe the terms of section 1462 'as limiting regulated material to patently offensive representations or descriptions of that specific 'hard-core' sexual conduct given as examples in Miller . . ..' The Court reaffirmed this intent in Hamling. Thus both statutes under which appellants were convicted satisfy the requirements of Miller test (b).

In Miller, the Court listed certain 'plain examples' of the type of material which a statute could regulate under Miller test (b):

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S. Ct. at 2615. The magazines which formed the basis for appellants' convictions are described at note 4 of our original opinion. It is readily apparent that these magazines contain material portraying most of the 'plain examples' of obscenity which Miller held sufficient to support a conviction. We find beyond a reasonable doubt that this case would have reached exactly the same result had it been tried using (b) of the Miller tests. See United States v. Gower, 164 U.S.App.D.C. 98, 503 F.2d 189 (1974). Nothing approaching the kind of doubt as to the application of Miller to the materials in question which required remand in Huffman v. United States (Pryba v. United States), 163 U.S.App.D.C. 417, 502 F.2d 419 (1974) is present in this case.

Appellants argued that the governmental interest in regulating obscenity is limited to the protection of juveniles and the prohibition of public display and pandering of such materials. The Supreme Court has since rejected the argument that the role of the government is so limited. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57--69, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

Appellants' convictions are accordingly affirmed as to all counts.

Affirmed.