In the Matter of the Complaint That 	) December 31, 1958
  					)
 BOWERY ENTERPRISES			)
  					)
 at 					)
  					)
 New York, New York 			) P.O.D. Docket No. 1/98
  					)
 (hereinafter called Respondent) is 	)
 engaged in conducting a scheme in 	)
 violation of 39 U.S. Code 259a. 	)

 Ablard, Charles D.

On December 5, 1958, a complaint was issued by the General Counsel alleging that Bowery-Enterprises was engaged in the conduct of a scheme in violation of 39 U.S. Code 259(a). The complaint alleged,

"That Respondent, by means of advertisements, copies of which are attached ... is now and for some time has been obtaining or attempting to obtain remittances of money or property through the mails for obscene, lewd, lascivious and indecent articles, matters, things, devices or substances, more specifically identified as follows: Photographs, slides and movies."

On the same date of the complaint, the Complainant petitioned the Judicial Officer to preside at the hearing and to expedite the decision. The petition was granted on December 8, 1958, and it was ordered that both sides submit proposed findings of fact at the conclusion of the hearing either orally or in writing. An answer was filed by the Respondent on December 17 with a motion to vacate the order requiring submission of proposed findings of fact and conclusions of law, and a motion to transfer the place of the hearing to New York City. Both of these motions were denied on December 18. The hearing was held December 19 in Washington, D.C., and a tentative decision was rendered to which the Respondent excepted.

Several preliminary jurisdictional motions to dismiss were made by the Respondent at the hearing and all of them were denied. The Complainant moved for summary judgment based on the Departmental Decision in a prior proceeding involving the same Respondent. (POD M/11). This motion was also denied. The Complainant made an opening statement in which he stated that the theory of his case was based upon U.S. v. Hornick, 229 F.2d 120, 3rd Circuit 1956. The court there held that it was a violation of 18 U.S.C. 1461 to send circulars which have "the leer that promises obscenity" and that it was immaterial that the matter actually furnished in response to the circular was not obscene.

The Post Office Department has proceeded administratively under this theory using the following complaint:

"That Respondent is depositing or causing to be deposited in the mails advertisements, copies of which are attached ... giving information as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices or substances may be obtained."

Use of this theory in administrative proceedings was upheld in Klaw v. Schaffer, 251 F.2d 615, and Glanzman v. Schaffer, 252 F.2d 333, both decided by the Court of Appeals of the Second Circuit. The charge made in the complaint which initiated this proceeding is the one which is made in Post Office Department proceedings where the Complainant alleges that the material sold is obscene.

During the course of the hearing (Tr. 20) the Judicial Officer questioned the adequacy of the complaint and the Complainant then moved to amend the complaint to include the latter charge quoted above which had been used in prior proceedings based upon the

Hornick theory. The Respondent objected to the proposed amendment, saying that to substantially amend during the hearing would be fatally prejudicial. Rule 201.12 of the Post Office Department Rules of Practice provides:

"an amendment of a pleading may be offered by any party any time prior to the closing of the hearing."

The motion to amend was denied. To amend a complaint during the course of the hearing which completely changes the theory under which the Government proceeds would be to deprive the Respondent of due process. The fact that the Respondent objected to the amendment cannot be held to be deemed a waiver of any defect in the complaint since the amendment was not offered until during the course of the hearing and the Respondent objected to the timeliness of the amendment.

Since the evidence offered by the Complainant did not prove the charge of the complaint a finding must be made that the Complainant failed to sustain the burden of proof. It is with reluctance that I so find since the Respondent in this proceeding has been involved in numerous proceedings before this Department and has deliberately flouted the orders of the Department prior to judicial review.

The proof offered by the Complainant certainly would have sustained a proper change under the Hornick theory and this decision does not preclude the subsequent filing of a proper charge.