Opposition — Haim v. United States

_Suprome Court, U.S *

FIED

No. 76-1827 SEP 13 i3/7.

EE ET ce See es

WICHAEL RODAK, JR., CLERK

In the Supreme Court of the Ti ited States

OCTOBER TERM, 1977

ALAN HAIM, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WapveE H. McCres, JR.,

Solicitor General,

BENJAMIN R. CIVILE7TI,

Assistant Attorney General,

JEROME M. FEIT,

JOHN J. KLEIN,

Attorneys,

Depariment of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OCTOBER TERM, 1977

\ No. 76-1827

ALAN HAIM, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals issued no opinion.

JURISDICTION

The judgment of the court of appeals (Pet. App. 1) was

entered on May 24, 1977. The petition for a writ of

certiorari was filed on June 22, 1977. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the district court acted within its discretion

in revoking petitioner’s probation.

STATEMENT

Following his guilty plea in the United States District

Court for the Western District of Louisiana, petitioner was

convicted of two counts of using the mails to distribute

(1)

2

obscene material in violation of 18 U.S.C. 1461.' He

was sentenced to five years’ imprisonment and a $1,844.83

fine (Tr. 18).

The court suspended execution of the sentence of im-

prisonment and placed petitioner on five years’ probation

with the special condition that he “not engage, directly

or indirectly in any business connected in any way with

the distribution of obscene or pornographic material”

(Tr. 19).2 Subsequently, the United States Probation

Officer for the Western District of Louisiana filed a mo-

tion to revoke petitioner's probation on the ground that

petitioner had violated the special condition of his proba-

tion by mailing an obscene magazine and movie from

Los Angeles, California, to Springfield, Illinois (Pet. 7).

The evidence at the revocation hearing showed that a

resident of Springfield, Illinois, received an unsolicited

advertisement for sexually oriented materials, which he

forwarded to a United States postal inspector who author-

ized a test purchase of the material (Tr. 28-30). The pur-

chase included a reel of movie film entitled “Big Dick 11,”

and a magazine entitled “Strokers,” both of which were

introduced into evidence and viewed by the court (Tr.

34-36, 40). A postal clerk identified petitioner from a

photograph as one of the individuals who had delivered

'Prior to his guilty plea petitioner sought to transfer the proceedings

to the Central District of California. His motion was denied. The court

of appeals subsequently denied petitioner's motion for a writ of

mandamus and this Court denied his motion for leave to file a petition

for a writ of mandamus and/or prohibition sub nom. Novick v.

United States District Court for the Western District of Louisiana.

423 U.S. 911. ;

“Tr.” refers to the one-volume transcript of petitioner's plea. sen-

tencing, and probation revocation proceedings.

a

3

the materials to the post office for mailing (Tr. 37-38).’

The envelope in which the materials were mailed was

addressed by petitioner and bore two of his fingerprints

(Tr. 46-47). At the conclusion of the hearing the court

found the materials to be

obscene in Louisiana where we are trying the proba-

tion revocation and that’s all that is required. * * *

Whether or not California or Illinois would, as a com-

munity standard, regard this as obscene is of no moment

in a hearing of this kind. In the mind of this Court, it

is obscene and pornographic [Tr. 51-52, 53].

Accordingly, the court revoked petitioner’s probation and

ordered him to serve the five years’ imprisonment origi-

nally imposed on the first count, to be followed by five

years’ probation on the second count (Tr. 53-54). The

court of appeals affirmed (Pet. App. 1).

ARGUMENT

Petitioner contends that the sentencing court could not

properly hold that he had violated his probation by dis-

tributing obscene materials unless it found that the mater-

ials he distributed were obscene under the standard of

the community from which the materials were mailed

(California) or in which they were received (Illinois). This

contention is insubstantial. Since petitioner’s original

conviction was based on the community standard of Louisi-

ana, that standard equally applied when the question of

revocation of probation was involved.

Petitioner's special condition of probation precluded him

from distributing in any community materials considered

‘These materials (Gx 4, 5 and 6) depicted nude men and women en-

gaged in coition, fellation and cunnilingus. The exhibits and tran-

script have been lodged with the Clerk.

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obscene by Louisiana standards.* The limited possibility

that the hard core pornography involved here might not

have been found obscene in another community was irrele-

vant as long as it was obscene in the locale in which peti-

tioner was convicted and in which he was placed on

probation.

This condition of probation was within the power of the

court. A sentencing court has broad discretion in fixing

the conditions of probation. Burns v. United States,

287 U.S. 216, 220-221. The prohibited conduct need not

be a crime. See e.g. Malone v. United States, 502 F. 2d

554 (C.A. 9), certiorari denied, 419 U.S. 1124; United

States v. Kohlberg, 472 F. 2d 1189 (C.A. 9).5 The sen-

tencing court need only insure—as was the case here—

that the condition of probation is reasonably and neces-

sarily related to the treatment of the accused and the pro-

tection of the public. United States v. Pastore, 537 F. 2d

675 (C.A. 2); Malone v. United States, supra,- 502 F. 2d

at 556; Porth v. Templar, 453 F. 2d 330 (C.A. 10);

See Birzon v. King, 469 F. 2d 1241, 1243 (C.A. 2).

*The sentencing court's language shows that it intended to prevent

petitioner from distributing any materials of the kind involved here

(Tr. 19). The court reaffirmed this intention at the revocation hearing

when it stated (Tr. 53):

We gave him a chance by giving him a suspended sentence and

he clearly understood he was not engage [sic] in this sort of thing

anywhere in the United States. We knew he was going back to

California. He was not to engage in this activity anywhere in the

United States.

‘In some cases defendants have been required to give up legitimate

businesses or professions for the period of probation. E.g., Whaley v.

United States, 324 F. 2d 356, 359 (C.A. 9), certiorari denied, 376 U.S.

911 (defendant who impersonated FBI agent prohibited from con-

tinuing repossession business); Stone v. United States, 153 F. 2d 331.

332-333 (C.A. 9) (railroad stewards who defrauded employer pro-

hibited from returning to that employment).

= a

5

Since petitioner was originally convicted of distributing

obscene materials in Louisiana, the prohibition of further

distribution imposed in light of the standards of that state

was related to petitioner's rehabilitation and the public

order. Accordingly, when the evidence introduced at the

revocation hearing reasonably satisfied the court that

petititioner had distributed materials considered obscene

by Louisiana standards, that court could properly find that

petitioner’s conduct had violated the special condition of

probation and revoke that probation.® See United States v.

Francischine, 512 F. 2d 827, 829 (C.A. 5), certiorari denied,

423 U.S. 931.

CONCLUSION

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

WADE H. McCree, Jr..

Solicitor General.

BENJAMIN R_ CIVILETTI,

Assistant Attorney General.

JEROME M. FEIr,

JOHN J. KLEIN,

Attorneys.

SEPTEMBER 1977.

*Petitioner does not contend that the evidence introduced at the re-

vocation hearing was insufficient to allow the sentencing court to

find that the material he distributed was obscene under Louisiana

obscenity standards.

DOJ-1977-09