Petition — Pinkus v. United States

Supreme Court brief1978

Ask Donna

What actually matters in this document.

Text

IN THE Us 1977

Supreme Court of the W Dedede s

Ocroser TERM, 1976" Bs |

mm ——9 7-39

Wim Priyxvs, doing business as “Rosstyn News

Company” and “Kamera,”

Petitioner,

—vV =

Unrrep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Bernarp A. BerKMAN

JosHua J. KancetpavuM

Berkman, Gorpoy, KancetspauM anpD Levy

2121 The Dluminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

E.uiot J. ABELSON

Lapren, ABELSON aND Harris

361 North Canon Drive

Beverly Hills, California 90210

(213) 273-6022

Attorneys for Petitioner

TABLE OF CONTENTS

Table of Authorities... ccccccdsccccecce iii

Opinion BelOW.ccccccccccccescsccccces 1

JUPLOEGLSCIOR sc ccccccceccecescsecs Seececes 2

Questions Presented........ceeeececes 2

Constitutional Provisions

and Statutes Involved............+.-. 4

Statement of the CaSe@..... cece eeccess 7

FOCUS ec ccccs TT CTT TTT rT UUT TTT 8

The Government Case-in-Chief.... 8

The Defense CaSe.......eeees cons 2

Government Rebuttal...........-. 1l

The Jury Charge......... seccecces 12

The Decision of the

Court Of ABMOBLS. cccccccecccese 14

Reasons for Granting the Writ........ 15

I. Important Questions Concerning

Il.

the Definition of the Community

Standard and the Average Person

in Obscenity Prosecutions are

PEOSEREEG. cc ccccccccccscccececes 16

A. Children Should Not be

Included in the Definition

of the Community............. 16

B. "Sensitive Persons" Should

Not be Included in the

Definition of the Community.. 19

Important Questions Concerning

the Viability of the Concurrent

Sentence Doctrine and the

Admissibility of Comparison

Evidence in Obscenity Trials are

Presented by the Decision of the

Court Below to Refrain from

Reviewing the Exclusion of Such

Evidence by Reason of the

Concurrent Sentences Imposed

Upon the Petitioner............- 21

IIl.

IV.

A. The District Court's Reliance

Upon the Concurrent Sentence

Doctrine Constituted Error

and Demonstrated a Conflict

Among the Circuit Courts of

Appeal as to the Application

GE Ge BOGSTAMR. vc ccccescesces 22

B. The District Court Erred in

Excluding the Comparison

BPR cd cod bccctnescoceses 27

This Case Presents Important

Questions Concerning the Pre-

requisites for a Jury Charge

on Prurient Appeal to Deviant

BOMBER GOONS ec ccccoascceseececes 30

This Case Presents Important

Questions Concerning the Sub-

mission of Pandering Charges

SO @ PUP accceccceteencesecsceser 33

A. There was Insufficient

Evidence to Support Any

Charge of Pandering.......... 34

B. The Charge on Pandering

Invited the Jury to Consider

Matters not in Evidence...... 37

CORBORSORs 0c ct seece Tre TTT? rTrerre es 41

Appendix:

Order of the Court of Appeals

Gee ig BOP TE 66 bs coe siscevess la

Opinion of the Court of

Appeals (April 7, 1977)...... 2a

iii

TABLE OF AUTHORITIES

Cases

Andresen v. Maryland, U.S.

, 96 S.Ct. 2737, 2739

ne 4 (1975) -ccccces saeseesses

Barnes v. United States, 412 U.S.

837, 848 n. 16 (1973)........-

Benton v. Maryland, 395 U.S. 784

. ee: Pe ore

Butler v. State of Michigan,

352 U.S. 380, 77 S.Ct. 524,

1 L.EG.2d 412 (1957)......-.-.--

Clermont v. United States, 422

F.2d 1215, 1217 (9th Cir.

1970), cert. denied 402 U.S.

997 (1971)... cc cc cccccccceces

Ginzburg v. United States, 383

U.S. 463 (1966)....... ecccces

Grant v. United States, 380 F.2d

748 (9th Cir. 1967).....-4---

Hamling v. United States, 418 U.S.

BY Chee cc vce cetecccescssoes

Hamling v. United States, 418 U.S.

129, 94 S.Ct. 2887 (1974)....

In re Harris, 16 Cal. Rptr. 889,

366 P.2d 305 (1961)........4.-

Marks v. United States, U.S.

, 97 8.Ct. 990 (1977)....

Miller v. California, 413 U.S. 15,

Oe Bolts BOOT CHOU ED ccccesees

Mishkin v. New York, 383 U.S. 502

Pts cbeee $6606666800600008

16,17,18

16,34,

35,37

28,29,32,

35,37

18,21,22,

32,33

8,20,

40,41

14,30,32,

33,34,35,

Paris Adult Theatre I v. Slaton,

413 U.S. 49, 56 n.6 (1973)... 31

Pierce v. State, 296 S.2d 218, 277

(Ala. 1974), cert. denied 419

U.8. 2490 (ES7el oc soeseneunnan 29

Regina v. Hicklin, L.R. 3 Q.B. 360

CSOOST coesvecoesseaeneeeeeaen 31

Roth v. United States, 354 U.S.

GPS (APSF) cece ctbéeeeeusenenes 8,16,17,

20,20,31

Sibron v. New York, 392 U.S. 40

CSUOOs oc ceereoeeeseleesenne 23

Smith v. United States, U.S.

, 45 L.W. 4495, 4498

(May 23, 1977) ecoececevoeeeeeeses 18,21,40

Splawn v. California, U.S.

, 45 L.W. 4574 (June 6,

Lys PPPTTiTi:: ~-- 21,36,37

State ex rel. Leis v. William S.

Barton Co., Inc., 45 Ohio

App. 2d 249, 263, 344 N.E.2d

343 (AD TE) cc cececesundaesenae 29

United States v. Baranov, 418 F.2d

1051, 1053 (9th Cir. 1969)... 36

United States v. Belt, 516 F.2d

873, 876 (8th Cir. 1975);

cert. denied 423 U.S. 1056

C39 76) 0000 00eeesbuseeunenee 25

United States v. Breitling, 20

How. 252, 254-55, 61 U.S.

252, 2394-35 (2EG8) occcesccocds 39

United States v. Febre, 425 F.2d

107, 113 (2d Cir. 1970),

cert. denied 400 U.S. 849

CLP IR) co ccevceeéeseeneseennesen 25

United States v. Hendricks, 456

F.2d 167, 179 (9th Cir.

BOTS) coccceceesebbeseeeneneneane 25

United States v. Jacobs, 433 F.2d

932, 933 (9th Cir. 1970)..... 22,29

United States v. Ketola, 455 F.2d

BS (Stn Civ. L975) ccccccses o¢

United States v. Manarite, 448 F.2d

583, 592 (2d Cir. 1971), cert.

denied 404 U.S. 947 (1971)...

United States v. Moore, 542 F.2d

576 (9th Cir. 1971)....... eae

United States v. Murray, 492 F.2d

BO CE GEE, BeUSbcccccccces

United States v. Paduano, 549 F.2d

145 (9th Cir. 1977)..........

United States v. Pinkus, No.

73-2900 (9th Cir. 1975)......

United States v. Pinkus, 551 F.2d

Bee Ce Giles BUT ibececceccece

United States v. Roth, 237 F.2d

796 (2d Cir. 1956, Frank, j.

concurring), aff'd 354 U.S.

GPS (BOB dccccccccccceccceces

U.S. v. Tanner, 471 F.2d 128, 140

(7th Cir. 1972), cert. denied

409 U.S. 949 (1972)..........

United States v. Treatman, 524

F.2d 320 (8th Cir. 1975).....

United States v. Yates, 355 U.S.

eens 8 wc eee ee eeeee

Womack v. United States, 294 F.2d

2 (D.C. Cir. 1961), cert.

den. 365 U.S. 859, 81 S.Ct.

826 (1961); approved United

States v. Womack, 509 F.2d

368, 375-376 (D.C. Cir. 1972),

cert. den. 422 U.S. 1022

S) ec cccccccccccccccsccccecs

Woodruff v. State, 11 Md. App. 202,

220, 273 A.2d 436 (1971).....

16,17

2,9,10,

14,15,16,

19,22,23,

28,30,21,

32,34,36,

38,39,40

vil

Constitutional Provisions

Pee Be. 6c wbebéoe obese 66 %eu

Other

Note, The Federal Concurrent

Sentence Doctrine, 70

Columbia L. Rev. 1099 (1970).

24,25,27

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

WILLIAM PINKUS,

doing business as

"Rosslyn News Company"

and "Kamera",

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

Petitioner prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Ninth Circuit entered in this case.

That judgment affirmed petitioner's con-

viction in the District Court for the

Central District of California on eleven

counts of mailing obscene material in

violation of 18 U.S.C. §1461l.

OPINION BELOW

The opinion of the United States

Court of Appeals for the Ninth Circuit is

reported at 551 F.2d 1155 (9th Cir. 1977),

and is set forth in the Appendix, infra,

p. 2a. No opinion was delivered in the

District Court

JURISDICTION

The opinion of the Court of Appeals

affirming petitioner's conviction was

filed on April 7, 1977, and the judgment

below was entered on that date. Appendix,

infra, p. 2a. Petitioner filed a

petition for rehearing with a suggestion

for rehearing in banc on May 2, 1977.

On June 6, 1977, the Court below denied

the petition for rehearing and rejected

the suggestion for rehearing in banc.

Appendix, infra, p. la.

This petition seeks review of the

judgment of a United States Court of

Appeals in a criminal case. This Court

has jurisdiction to grant this petition

under 28 U.S.C. §1254({1).

QUESTIONS PRESENTED

In a federal prosecution for mailing

allegedly obscene materials, where it was

stipulated that the materials were not

mailed to children, and that children were

not involved in the case, did the District

Court's jury instruction that children

were to be considered as part of the

community whose standards were to be

applied in determining whether the materials

were obscene contravene the First Amendment

and constitute error?

Il.

In a federal prosecution for mailing

allegedly obscene materials, where there

was no evidence that the materials were

mailed to especially sensitive persons, did

the District Court's jury instruction that

sensitive persons were included in the

community whose standards were to be applied

in determining whether the materials were

obscene contravene the First Amendment

and constitute error?

IIl.

In a federal prosecution for mailing

allegedly obscene materials, where the

Court of Appeals, in reviewing petitioner's

conviction, determined that two motion

pictures offered as comparison evidence

and excluded by the District Court bore a

reasonable resemblance to the motion picture

film which was the subject of one of

several counts of the indictment, and

where the record demonstrated massive

public acceptance of the two films, (i) did

the Court of Appeals err in refusing to

review the exclusion of the comparison

evidence in reliance upon the concurrent

sentence doctrine; and (ii) where the

defense adduced uncontradicted evidence

that two motion pictures had received

massive public acceptance within the

community, and offered proof that these

two films were comparable to the allegedly

obscene materials, did the refusal of the

District Court to permit the jury to review

the films constitute error?

IV.

In a federal prosecution for mailing

allegedly obscene materials, where the

record contained no evidence that the

material was designed for or disseminated

to any clearly defined deviant group,

(i) did the District Court err in instructing

the jury that it could consider the appeal

of the material to the prurient interest

of members of a deviant sexual group, and

(ii) did the District Court err in instruct-

ing the jury that it could consider the

appeal of such material to members of a

deviant group without regard to whether

the material was "designed for and primarily

disseminated to a clearly defined deviant

sexual group?"

In a federal prosecution for mailing

allegedly obscene materials, where there

was no evidence as to the setting in which

the materials were presented, or as to

their manner of distribution, circumstances

of production, sale or advertising, except

the allegedly obscene ads and brochures

themselves and the occupations of the

recipients, did the Court below err (i) in

instructing the jury that it could consider

pandering in determining whether the

materials were obscene, and (ii) in

specifically instructing the jury that it

could consider the setting in which the

materials were presented including their

manner of distribution, circumstances of

production, sale or advertising?

CONSTIYUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, Amendment 1:

Congress shall make no law...abridging

the freedom of speech, or of the press....

18 U.S.C. §1461:

"Every obscene, lewd, lascivious,

indecent, filthy or vile article,

matter, thing, device, or substance;

and

"Every article or thing designed,

adapted, or intended for preventing

conception or producing abortion,

or for any indecent or immoral

use; and

"Every article, instrument,

substance, drug, medicine, or

thing which is advertised or

described in a manner calculated

to lead another to use or apply

it for preventing conception or

producing abortion, or for any

indecent or immoral purpose; and

"Every written or printed card,

letter, circular, book, pamphlet,

advertisement, or notice of any

kind giving information, directly

Or indirectly, where, or how, or

from whom, or by what means any

of such mentioned matters, articles,

or things may be obtained or made,

Oo. * “ere or by whom any act or

op. ion of any kind for the

pr .ing %r producing of abortion

Wils pe du... or performed, or how

or by what weans conception may

be prevented or abortion produced,

whether sealed or unsealed; and

"Every paper, writing, advertisement,

or representation that any article,

instrument, substance, drug,

medicine, or thing may, or can,

be used or app'tied for preventing

conception or producing abortion,

or for any indecent or immoral

purpose; and

"Every description calculated

to induce or incite a person to

So use or apply any such article,

instrument, substance, drug,

medicine, or thing--

"Is declared to be nonmailable

matter and shall not be conveyed

in the mails or delivered from

any post office or by any letter

Carrier.

"Whoever knowingly uses the

mails for the mailing, carriage

in the mails, or delivery of

anything declared by this section

to be nonmailable, or knowingly

causes to be delivered by mail

according to the direction thereon,

or at the place at which it is

directed to be delivered by the

person to whom it is addressed,

or knowingly takes any such thing

from the mails for the purpose

of circulating or disposing

thereof, or of aiding in the

Circulation or disposition thereof,

shall be fined not more than

$5,000 or imprisoned not more

than five years, or both, for

the first such offense, and shall

be fined not more than $10,000

Or imprisoned not more than ten

years, or both, for each such

offense thereafter...."

STATEMENT OF THE CASE

On November 6, i972, petitioner

William Pinkus was indicted in the United

States District Court for the Central

District of California on eleven counts

of mailing obscene material and adver-

tisements in violation of 18 U.S.C. §1461.}

A jury trial held in July of 1973

resulted in petitioner's conviction which

was reversed by the Court of Appeals for

the Ninth Circuit on or about February 5,

1975.2 The reversal of the prior con-

viction under this indictment was based

1. TT. 1-11. The record in the Court of

Appeals below consisted of transcripts of the

clerk's record and the reporter's record.

References to the transcript of the clerk's

record are herein designated by the prefix "T",

and references to the reporter's transcript are

designated by the prefix "R". Counts I, IV, V,

VI, VII, IX, X and XI charged petitioner with

mailing obscene brochures advertising films, books

and magazines (and, in case of Count X, playing

cards). Counts II, III and VIII charged him with

mailing information where obscene material could

be obtained. In addition, Count VII alleged the

mailing of an obscene magazine and Count XI

alleged the mailing of an obscene film. The

dates of the alleged offenses ranged from July 28,

1971, to June 19, 1972.

2. United States v. Pinkus, 73-2900

(9th Cir. 1975).

oe aie Neen - —_ ’ - . ~ S emeneeemitn ¢

upon the fact that the jury had been

instructed under the expanded concept of

obscenity announced in Miller v. California,

413 U.S. 15, 93 S.Ct. 2607 (1973), although

the alleged offenses occurred prior to that

decision so that the more stringent Roth-

Memoirs definition of obscenity was appli-

cable. Cf. Marks v. United States,

U.S. , 97 S.Ct. 990 (1977).

Petitioner was retried before the

same trial judge, generally under Roth-

Memoirs precepts, in January of 1976; and

a jury verdict of guilty on all eleven

‘counts was rendered on January 12, 1976.

On February 9, 1976, the Court sentenced

William Pinkus to imprisonment for four

years on each count, sentences to run

concurrently [T. 356]. The Court also

initially fined him an aggregate total of

$11,000 (Ibid.), but upon noting that

this fine was greater than that imposed

following the first trial, the Court reduced

the fine to $5,500 by entry dated March l,

1976 (Ibid.).

Appellant filed his notice of appeal

to the Court of Appeals for the Ninth

Circuit on February 10, 1976.

The disposition of this case in the

Court of Appeals is described in the

Statement of Jurisdiction at p. 2,

Supra.

FACTS

The Government Case-in-Chief

‘The government's case-in-chief

consisted solely of the introduction of

the allegedly obscene brochures and

advertised or mailed obscene materials

[Government Exhs. 1-ll, R. 134-141],

and the reading of a stipulation that

the materials were voluntarily and

intentionally mailed by the defendant with

knowledge of the content and with the

intention that the mailed materials be

for the personal use of the recipient

(Ibid.). 551 F.2d at 1157.

At close of the government's case,

the government acknowledged that certain

materials were presented as appeaiing to

deviant groups [R. 147]. The defense called

the attention of the Court to the lack of

any independent evidence as to the deviant

character of the materials (Ibid.), and

moved for acquittal [R. 155-156, T. 177-180].

The motion was overruled [R. 164]. e

The Defense Case

The defense case consisted of expert

and survey evidence tending to prove that

the materials did not appeal to prurient

interest, did not exceed community standards

and had redeeming value. A survey of

sexual attitudes was, in part, admitted

[R. 2183258; 304-432; 469-513; Deft. Exhs.

G, H & I). 551 F.2d at 1157.

In support of the community acceptance

of comparable materials, the defense called

Whitney Williams, a representative of the

entertainment newspaper, Daily Variety,

who presented box office statistics for

the popular films "Deep Throat" and "The

Devil and Miss Jones" in the Los Angeles

area [R. 285], indicating that at five

dollars per admission, "Deep Throat"

grossed $2,672,476 during 1973 [R. 294, Deft.

Exh. D] and additional large sums in 1974

[R. 295]; that "The Devil and Miss Jones"

grossed $1,209,180 during 37 weeks in 1973-

74 [R. 297, Deft. Exh. E]; and that these

sexually explicit films were rated first

and third on the list of the ten highest

grossing films of the year in Los Angeles

[R. 296-297]. At the $5.00 admission price,

more than one-half million people attended

exhibitions of "Deep Throat" in Los Angeles

during 1973 alone, while more than 240,000

people purchased tickets for "the Devil

and Miss Jones."

Although the trial judge had permitted

the jury to hear the foregoing statistics

concerning the public acceptance of "Deep

Throat" and "The Devil and Miss Jones,"

he refused to allow the jury to see these

motion pictures. Repeatedly during the

trial the defense offered to exhibit these

two films to the jury either in a theater

[R. 170-172] or in the court room [R. 537-

538], both for the benefit of the court

and the jury on the issue of obscenity vel

non and as comparison materials on the

issue of contemporary community standards

[R. 691].3 The trial judge refused to

permit these films to be admitted [T. 693]

because he had viewed "part”™ of "Deep

Throat" and felt "that it would not be

proper for the films that have been offered

to be shown to the jury." (Ibid.) There

is no explication of why he came to this

conclusion. See 551 F.2d at 1160-61.

The trial judge acknowledged that:

Ba Defense Exhibits K, L, M, N and O.

",..- in no way does [this case]

involve any distribution of mater-

ial of any kind to children, and

that the evidence will, that

there w.1ll be a stipulation even

that there has been no exposure

of any of this evidence to

children." [R. 60].

Nevertheless, he permitted cross-

examination of a defense witness on the

effects of c»scenity on children [R. 396-

398] .

Government Rebuttal

After the defense rested, over

objection the government called a rebuttal

witness, Dr. James Rue. Dr. Rue was a

family counselor with minimal qualifications

in sexual matters, whose doctorate was in

telecommunications [R. 557-558; 569-570].

Over objection, Dr. Rue mentioned contact

with "deviant sexual groupings" in his

practice [R. 552] and was allowed to testify

that certain aspects of the materials had

appeal to "the average person in the

community as well as sexually deviant

groups." [R. 582-583].

This witness never did testify as to

the effect of specific material on particular

well-defined deviant groups, and there is

utterly no record that the material was

designed for or distributed to the members

of any deviant group. Dr. Rue's testimony

on the subject of deviance was merely that

the diverse materials as a whole appealed

to the prurient interest of the average

person [R. 588] and, also, the prurient

interest of a member of an unspecified

sexually deviant group [R. 588-589].

Over objection the Court also permitted

Dr. Rue to testify as to the adverse effect

of obscene materials on the "young person"

[R. 578].

In direct examination, Dr. Rue was

asked whether he had any experience which

would illustrate the effects of viewing

Similar material on the viewer. He replied

that in a case "he was currently dealing

with the father had molested his own daughter

after having come from an adult book

store...." [R. 579]. Petitioner immediately

moved to strike and moved for a mistrial,

but the motions were denied [R. 579].

The Jury Charge

Notwithstanding the stipulation that

children were not involved in this case,

the trial court refused to instruct the

jury that the defendant was not charged

"with having violated any law with regard

to minor children" or that the jury should

not “assume from the fact that there might

have been testimony concerning minor

children that the defendant is associated

in any way with the issue concerning

children." [T. 191, R. 662]. The judge

refused all instructions tendered by

petitioner which would have defined community

standards in terms of what is accepted by

the “average adult person" [T. 215; R. 678;

R. 670-671].

Instead of excluding consideration

of the special sensibilities of minors,

the trial judge expressly adopted an

instruction requested by the government

[R. 243] and charged the jury that:

"In determining community standards,

you are to consider the community

as a whole, young and old,

educated and uneducated, the

religious and the irreligious,

men, women and children, from

all walks of life.“ [R. 808].

(Emphasis added).

The district court also charged the

jury that in determining the hypothetical

average standard in the community, the

jury must include the "sensitive," as well

as the "insensitive"; that "in other words,

you must include everyone in the community."

[R. 807].

Despite the lack of sufficient testimony

concerning the existence of any well-

defined deviant group or groups for whom

the material was designed or to whom it

was distributed, the Court instructed the

jury (over objection), that it must gauge

whether the material when “considered in

relation to the intended and probable

recipients constituted an appeal to the

prurient interest of the average person...

or the prurient interest of members of a

deviant sexual group" [R. 806] and that

in applying the prurient interest test

it must consider “iow the picture would

have impressed the average person, or a

member of a deviant sexual group....”"

[R. 806-807].

The Court also instructed the jury

at length, over objection, on pandering

[R. 810-811]. The charge, in part,

instructed the jury that in determining

the obscenity of the materials, it could

"consider the setting in which they are

presented." [R. 810].

"Examples of what you may consider

in this regard are such things

as: manner of distribution,

Circumstances of production,

sale and advertising." (Ibid.).

Except for the brochures themselves, there

was not a scintilla of evidence on any of

these subjects.

The Decision of the Court of Appeals

. The Court of Appeals found that the

jury instruction On "sensitive persons”

- ge. an elaboration on the concept

of the total community." 551 F.2d

1157-58. wai

While the Court acknowledged its

preference that "children be excluded from

the Court's instruction until the Supreme

Court clearly indicates that inclusion is

proper", it refused to reverse the conviction

because of the inclusion of children in

the instruction. Id. at 1158.

The Court below rejected petitioner's

argument concerning the necessity of a

foundation for an instruction on deviant

appeal, holding that Mishkin v. New York,

383 U.S. 502 (1966) did not require a

showing that the material was designed

for and disseminated to a clearly defined

deviant group. Id. at 1158-59.

Concerning the pandering charge the

Court ruled, inter alia, that the mere

fact that the occupations of the recipients

were mentioned in the stipulation was a

sufficient evidentiary foundation to

Support a charge that the jury could

consider the setting in which the materials

are presented, including “manner of distri-

bution, circumstances of production, sale

and advertising", even though the record

did not deal with these subjects at all.

Id. at 1159-60.

The Court of Appeals dismissed as

inconsequential improprieties concerning

the inclusion of children into the case.

Id. at 1160, 1161. Although the Court

agreed with petitioner that the admission

of the inflammatory testimony of the

government rebuttal witness concerning a

father molesting his daughter was “error"

and that the motion to strike should have

been granted, the Court held that reversal

was not required and that the Court's

denial of petitioner's motion for mistrial

was proper. Id. at 1161-62.

The Court of Appeals also held that

the comparable motion pictures offered by

petitioner were reasonably similar to the

film which was the subject of Count 9 of

the indictment, but refused to complete

its review of the assigned error concerning

refusal to admit this evidence in reliance

upon the concurrent sentence doctrine.

Id. at 1161. The concurrent sentence

doctrine had not been asserted by the

government and was not briefed below, until

petitioner applied unsuccessfully for

rehearing in the Court of Appeals.

REASONS FOR GRANTING THE WRIT

Important questions concerning the

definition of the community standard and

the average person in obscenity prosecutions

are presented.

| A. Children should not be included

in the definition of the community.

At least two federal appellate courts

have now upheld obscenity convictions based

upon jury charges which have instructed

the jury that in determining community

standards, the community as a whole must

be considered, including children. See

the decision below, 551 F.2d at 1158;

United States v. Manarite, 448 F.2d 583,

992 (2d Cir. 1971), cert. denied, 404 U.S.

947 (1971).

This type of jury charge appeared in

the trial which culminated in Roth v.

United States, 354 U.S. 493 (1957). How-

ever, the notion that this Court's affir-

mance of the obscenity conviction in Roth

was an approval of that instruction was

explicitly rejected in Ginzburg v. United

States, 383 U.S. 463 (1966), as follows:

"We are not, however, to be

understood as approving all

aspects of the trial judge's

exegesis of Roth, for example

his remarks that 'the community

as a whole is the proper consi-

deration. In this community,

Our society, we have children

of all ages, psychotics, feeble-

minded and other susceptible

elements. Just as they cannot

set the pace for the average

adult reader's taste, they

cannot be overlooked as part of

the community.' 224 F.Supp. at

137. Compare Butler v. State

of Michigan, 352 U.S. 380, 77

S.Ct. 524, 1 L.Ed.2d 412."

Indeed, the concurring opinion of Judge

Frank in the Court of Appeals for the

Second Circuit,in Roth, had noted that

the correct test is the effect of the

material on “average normal adult persons....

United States v. Roth, 237 F.2d 796 (2d

Cir. 1956 Frank, j. concurring), aff'd

354 U.S. 476 (1957). It seems clear that

this Court's review of Roth was intended

to fix the constitutional definition of

obscenity, and not to affirm the jury charge.

In Butler v. Michigan, 352 U.S. 380

(1957), this Court considered the validity

of a statute which punished distribution

to the general public of material having

a “potentially deleterious influence upon

youth." Id., at 383. Striking down this

statute, this Court held that:

"We have before us legislation

not reasonably restricted to the

evil with which it is said to

deal. The incidence of this

enactment is to reduce the adult

population of Michigan to reading

only what is fit for children.

It thereby arbitrarily curtails

one of those liberties of the

individual, now enshrined in the

Due Process Clause of the Four-

teenth Amendment, that history

has attested as the indispensable

conditions for the maintenance

and progress of a free society."

Id., at 383-84. (Emphasis added).

To be sure, the charge in the instant

case, like the charges in Roth and

Manarite, supra, did not define obscenity

solely in terms of what is fit for children,

but included children as members of the

community along with adults. Nevertheless,

ee —

the charge clearly has the effect, condemned

in Butler, of reducing the level of the

community standard below that of the average

adult. If the standards applicable to

children are to be given any weight in

assessing materials distributed to adults,

the composite average which results from

the calculation will necessarily be below

that of the average adult.

. This charge also suffers from the

vice of being unnecessarily confusing. As

further discussed in connection with the

“sensitive persons" charge at pp. 19-21,

infra, it causes the jurors to attempt an

impossible calculation of a hypothetical

average person by toting up everyone in

the community and computing a mean or median.

In Hamling v. United States, 418 U.S.

129, 94 S.Ct. 2887 (1974), the Supreme

Court made it clear that the "average

person" is a concept to be employed in a

manner similar to the “reasonable person."

See also United States v. Treatman, 524

F.2d 320 (8th Cir. 1975). It refers to

“the average adult". Ibid. Most recently

this Court reaffirmed that there is a

“close analogy between the function of

contemporary community standards' in

obscenity cases and 'reasonableness' in

other cases." Smith v. United States,

¥.8. , 45 L.W. 4495, 4498 (May 23,

1977). Such a common sense approach

suggests that the jurors should merely be

instructed to apply the standard of an

average normal adult in the community

without engaging in the illusory task of

calculating that average by some sort of

mental survey of the entire community,

most of whose members have never even made

their standards known to the jurors.

The Court below bases its ruling on

this point expressly on a “lack of authority

against such an outcome." 551 F.2d at

1158. A writ of certiorari should be

granted to supply that authority.4

B. "Sensitive persons" should not

be included in the definition of the

community.

In addition to including "children"

as members of the relevant community whose

standards were to be applied in assessing

the materials for obscenity (see discussion

at pp. 16-19, supra) the district court

charged the jury that:

"You are to judge these materials

by the standard of the hypothetical

average person in the community

but in determining this average

standard, ‘you must include the

sensitive and the insensitive,

in other words, you must include

everyone in the community."

[R. 807] (Emphasis added).

4. The inclusion of children in the defi-

nition of the community was compounded by other

errors assigned in the Court of Appeals below.

The district judge permitted government testimony

on the adverse effect of pornography on children,

refused to instruct that children were not

involved in the case, and refused to strike

government testimony concerning incestuous moles-

tation of a child by an adult bookstore customer.

See pp. 10-13, supra.

This instruction is hopelessly confusing

for some of the reasons discussed in

connection with the inclusion of children

as members of the community. See pp. 18-19,

Supra. This instruction turns topsy-turvy

the precept of Miller v. California that

material "will be judged by its impact on

an average person, rather than a particularly

Susceptible or sensitive person - or indeed

a totally insensitive one. See Roth v.

United States, supra, 354 U.S. at 489,

77 S.Ct. at 1311." Miller v. California,

413 U.S. 33 (1973). The purport of this

language quoted from the Miller opinion

1s to exclude from the jury's consideration

the sensibilities of most and least sensi-

tive persons. However, the thrust of the

amplification of "average man" concept

contained in the trial judge's charge here

1s to require the jury to include the

sensibilities of "everyone" in the community

in its deliberations before calculating

the average level of sensitivity. Although

jurors may have some common-sense notion

of what an "average" attitude in the

community might be, they do not know

"everyone in the community," and cannot

be expected intelligently to apply an

equation which requires them to arrive at

the median by reference to "everyone."

The practical effect of this instruction

is to require the jury to consider and

include that which Miller and Roth both

required them to ignore and exclude - the

sensibilities of the most susceptible

members of the community. As this Court

recently said,

"a principal concern in requiring

that a judgment be made on the

basis of ‘contemporary community

standards' is to assure that the

material is judged neither on the

basis of each juror's personal

opinion, nor by its effect on a

particularly sensitive or in-

sensitive person or group."

Hamling v. United States, 418

U.S. 87, 107 (1974).

By undermining that concern, the jury charge

in this case was prejudically erroneous.

In Smith v. United States, U.S.

, 45 L.W. 4495 (May 23, 1977), as well

as Splawn v. California, U.S. ;

45 L.W. 4574 (June 6, 1977), this Court

focused on the critical importance of

proper jury instructions in obscenity

cases. See particularly, Smith v. United

States, U.S. , 45 L.W. 4495, 4498

(May 24, 1977).

Certiorari should be granted to

develope a clear and understandable defini-

tion of the community for use in jury

instructions in federal obscenity prose-

cutions.

Il.

Important questions concerning the

viability of the concurrent sentence

doctrine and the admissibility of compari-

son evidence in obscenity trials are

presented by the decision of the Court

below to refrain from reviewing the exclu-

Sion of such evidence by reason of the

concurrent sentences imposed upon the

petitioner.

A. The District Court's reliance

upon the concurrent sentence doctrine

constituted error and demonstrated a

conflict among the circuit courts of appeal

as to the application of the doctrine.

In Hamling v. United States, 418 U.S.

87, 125 (1974), this Court held that

although mere availability of comparable

materials on the newsstands does not make

such materials admissible in an obscenity

trial, “(tjhe defendant in an obscenity

prosecution, just as a defendant in any

other prosecution, is entitled to an

opportunity to adduce relevant, competent

evidence, bearing on the issues to be

tried." Ibid. Accordingly, petitioner

laid an elaborate foundation concerning

the massive public acceptance of a mere

two films offered as comparison evidence.

See Statement of Facts, pp. 9-10, supra.

: The Court below concluded that the

films would be admissible, under its

holding in United States v. Jacobs, 433

F.2d 932, 933 (1970), if the defense were

to demonstrate "(l) a reasonable resemblance

between the proffered comparables and the

allegedly obscene materials, and (2) a

reasonable degree of community acceptance

of the proferred comparables." 551 F.2d

at 1160-61. The Court further found

reasonable resemblance between the films

proffered and the films in one of the

counts of the indictment, but declined to

complete its review of this issue because

it found dissimilarity between the films

and the brochures involved in the other

counts, on which petitioner had been

concurrently sentenced.

"This circuit has adopted the

concurrent sentence doctrine which,

as enunciated by the Supreme

Court in Benton v. Maryland,

395 U.S. 784, 791 (1969), ...is

that a federal appellate court,

as a matter of discretion, may

decide that it is unnecessary to

consider argument advanced by

an appellant with regard to his

conviction under o12 or more

counts of an indictment, if he

was at the same time validly

convicted of other offenses under

other counts and concurrent

sentences were imposed." 551

F.2d at 1161.

This pronouncement utterly misreads

and distorts the holding of Benton v.

Maryland, 395 U.S. 784 (1969). In Benton

this Court not only declined to apply the

concurrent sentence doctrine on the facts

before it, it also criticized and restricted

the doctrine, noting that one "can search

through these [the concurrent sentence]

cases, and related ones, without finding

any satisfactory explanation for the

concurrent sentence doctrine." Id. at

789. This Court ruled that the doctrine

is not jurisdictional (Id. at 790), and

that "the existence of concurrent sentences

does not remove the elements necessary to

create a justiciable case or controversy."

Ibid. It was acknowledged, in Benton,

that “most criminal convictions do in

fact entail adverse collateral legal conse-

quences." Ibid. quoting from Sibron v.

New York, 392 U.S. 40 (1968). Examples

of adverse consequences mentioned in Benton

included enhanced sentencing, use of

convictions for impeachment and the like.

395 U.S. at 790-91. In the Benton case,

this Court declined to pass on whether the

concurrent sentence doctrine even remains

a discretionary principal of appellate

review:

"The concurrent sentence rule may

have some continuing validity as

a rule of judicial convenience.

That is not a subject we must

Canvass today, however. It is

sufficient for present purposes

to hold that there is no juris-

dictional bar to consideration

of challenges to multiple con-

victions, even though concurrent

sentences were imposed." Id. at

791. (Emphasis added).> ~~

Following Benton, "[m]Jost federal

appellate courts that have been confronted

with a concurring sentence situation...

have refused to dismiss automatically an

appeal from less than all counts and have

Similarly refused automatically to find

it ‘unnecessary’ to review remaining

counts after one has been examined and

found valid." Note, The Federal Concurrent

Sentence Doctrine, 70 Columbia L. Rev.

1099, 1109 (1970) (footnote deleted).

"Arguably, a court's task is to

determine whether significant

collateral consequences may

attend an unreviewed conviction

or whether, if an appellant's

claims are valid, an erroneous

5. Subsequent decisions of this Court suggest

that the doctrine is discretionary for this Court's

review on certiorari. Andresen v. Maryland, |

U.S. , 96 S.Ct. 2737, 2739 n.4 (1975); Barnes

v. United States, 412 U.S. 837, 848 n. 16 (1973).

conviction on an as yet unreviewed

count may have prejudiced the

jury in its deliberations or may

have influenced the judge in

sentencing." Id., at 1109-1110.

In view of the Benton decision, some circuit

courts of appeals have held that prejudice

will be presumed, and all counts will be

reviewed, unless a lack of prejudice is

clearly shown.

"Since we cannot say that there

is no possibility of undesirable

collateral consequences attendant

upon these convictions, we choose

to consider the validity of all

the challenged counts." U.S. v.

Tanner, 471 F.2d 128, 140 (7th

Cir. 1972), cert. denied 409 U.S.

949 (1972); see also United States

v. Febre, 425 F.2d 107, 113 (2d

Cir. 1970), cert. denied 400 U.S.

849 (1971); United S’ ates v. Belt,

516 F.2d 873, 876 (8th Cir. 1975);

cert. denied 423 U.S. 1056 (1976).

The cautious application of the

concurrent sentence doctrine exemplified

by the Febre and Tanner decisions directly

conflicts with the application of that

doctrine in the Ninth Circuit. As in the

case at bar, the Court of Appeals for the

Ninth Circuit has tended to invoke the

doctrine routinely and without explanation

of the criteria upon which it has relied.

See, for example, United States v. Moore,

452 F.2d 576 (9th Cir. 1971); United States

vy. Hendricks, 456 F.2d 167, 179 (9th Cir.

1972); United States v. Ketola, 455 F.2d

83 (9th Cir. 1975); and United States v.

Paduano, 549 F.2d 145 (9th Cir. 1977).

An earlier decision of the Ninth Circuit

which recognized that the mere possible

impairment of opportunity for pardon or

parole justified review notwithstanding

concurrent sentences seems to have been

abandoned. See Clermont v. United States,

422 F.2d 1215, 1217 (9th Cir. 1970), cert.

denied 402 U.S. 997 (1971). On at least

one occasion, the Ninth Circuit has elected

to review assigned error despite the

availability of the concurrent sentence

doctrine without explanation. See United

States v. Murray, 492 F.2d 178 (9th Cir.

1973).

This Court should grant certiorari

in order to answer the question left open

in Benton, whether the concurrent sentence

doctrine remains viable as a discretionary

principal of appellate review, and if so,

to describe the criteria upon which it

should be applied. In so doing, this

Court should end the inconsistency with

which the doctrine is currently applied

in the Ninth Circuit, and the direct

conflict between the Ninth Circuit decisions

and those of other jurisdictions.

The concurrent sentence doctrine

operates with particular unfairness in the

present case. In addition to the usual

collateral effects incident to the worsening

of a criminal record by an additional

conviction, there is special prejudice

shown to petitioner. It cannot be presumed

that the jury, which found him guilty on

all counts, kept clearly in mind the

nice distinctions between the materials

shown them under each separate count. It

may well be that if a view of the offered

comparison evidence had persuaded the

jury that the film was not obscene, it

would have been less inclined to convict

on the other counts as well. See Note,

The Federal Concurrent Sentence Doctrine,

70 Columbia L. Rev. 1099, llll (1970).

Moreover, since much of the other

materials at issue consisted of allegedly

obscene advertising, and the film to which

this Court found the comparison evidence

relevant was one of the only examples

before the jury as to the content of the

product being advertised, the jury may

well have been influenced in its appraisal

of the ads by its assessment of the film.

Finally, the trial judge may have been

influenced inthe length of the concurrent

sentences imposed by the fact that the

jury found the defendant guilty on all

counts. Cf. United States v. Yates, 355

U.S. 66 (1957) (remand for resentencing

ordered where conviction on one of a number

of counts was affirmed).

Under these circumstances, an applica-

tion of the concurrent sentence doctrine

without explicit consideration of the

relevant factors was inappropriate. Accord-

ingly, this case presents a particularly

appropriate opportunity for rev.ew of the

concurrent sentence doctrine on certiorari.

B. The District Court erred in

excluding the comparison evidence.

If the Court of Appeals below had

completed its review of the comparable

films offered by the petitioner, it should

have found that the District Court had

erred in excluding them. This case presents

an important question, left open in Hamling

v. United States, 418 U.S. 87 (1974),

concerning the circumstances under which

a trial court should admit such evidence.

In Hamling, this Court affirmed the

refusal of a trial judge to permit the

introduction of offered comparable mater-

ials. 418 U.S. at 124-25. However, the

rejection of comparison evidence in that

case was based on factors absent here.

First, a “deluge” of materials was offered

(id. at 125), whereas in the present case,

only two films were offered.

Secondly, the basis, in Hamling, for

the defense assertion that the materials

had achieved public accptance was merely

that some of them had received second-

class mailing privileges, others had been

found constitutionally protected in

litigation, and some were openly available

at newsstands. Ibid. This Court held

that none of these factors militated in

favor of their admission because neither

the availability of the materials, nor

mailing privileges, create any presumption

that the comparable evidence was itself

non-obscene (id. at 125-26); and that

prior adjudications of nonobscenity do not

make the material relevant as to the

obscenity of other material. Id. at 126-

27. To the contrary, in the present case,

the public acceptance of the films was

proven by their massive box office perform-

ance. See pp. 9-10, supra. And their

relevance as to at least certain material

in the trial was affirmatively found by

the Court of Appeals below. See 551 F.2d at

1161. Accordingly, this case presents the

questions whether the principles delineated

in the state courts and the lower federal

appellate courts concerning the admission

of such evidence are correctly stated,

and whether those principles may be

arbitrarily disregarded by the district

courts.

The necessary foundation for the

admission of comparable evidence has been

held to consist of two elements: a showing

of similarity of the materials and a

showing of a “reasonable degree of community

acceptance...." Womack v. United States,

294 F.2d 204 (D.C. Cir. 1961), cert. den.

365 U.S. 859, 81 S.Ct. 826 (1961); approved

United States v. Womack, 509 F.2d 368,

375-376 (D.C. Cir. 1972), cert. den. 422

U.S. 1022 (1975); followed, United States

v. Jacobs, 433 F.2d 932, 933 (9th Cir.

1970). State courts have held that where

these elements are present a reasonable

amount of non-repetitive materials should

be admitted to shed "light on contemporary

community standards." Woodruff v. State,

ll Md. App. 202, 220, 273 A.2d 436 (1971);

State ex rel. Leis v. Williams S. Barton

Co., Inc., 45 Ohio App. 2d 249, 263, 344

N.E.2d 342 (1975); Pierce v. State, 296

S.2d 218, 277 (Ala. 1974), cert. denied

419 U.S. 1130 (1975); see also In re Harris,

16 Cal. Rptr. 889, 366 P.2d 305 (1961).

Review of this case on certiorari is

required to establish that the admittedly

broad discretion of trial courts to admit

or reject evidence is not absolute, and

that this Court's decision in Hamling

should not be construed as authorizing

arbitrary exclusion of offered relevant

comparison evidence.

Iil.

This case presents important questions

concerning the prerequisites for a jury

charge on prurient appeal to deviant

sexual groups.

Petitioner urged as error in the

Court of Appeals below, the instruction to

the jury that it must gauge whether the

material when "considered in relation to

the intended and probable recipients con-

stituted an appeal to the prurient interest

of the average person...or the prurient

interest of members of a deviant sexual

group” [R. 806], and that in applying the

prurient interest test the jury must

consider “how the picture would have

impressed the average person, or a member

of a deviant sexual group...." [R. 806-

807]. See 551 F.2d 1158. Petitioner

argued that (i) there was insufficient

evidence of prurient appeal to members of

sexually deviant groups to sustain any

jury charge on the subject; and (ii) that

the charge as given was erroneous in that

it failed to require the jurors to consider

whether the material was "designed for and

primarily disseminated to a clearly defined

sexual group." Petitioner relied, for

these propositions, on the opinion of this

Court in Mishkin v. New York, 383 U.S. 501

(1966), which stated, in part:

"Where the material is designed

for and primarily disseminated

to a clearly ee oe:

sexual group, rather than the

public at large, the prurient-

appeal requirement of the Roth

test is satisfied if the dominant

theme of the material taken as

a whole appeals to the prurient

interest in sex of the members

of that group. The reference

to the ‘average’ or ‘normal’

person in Roth, 354 U.S. at 489-

490, 77 S.Ct., at 1311, does not

foreclose this holding. In regard

to the prurient - appeal requirement,

the concept of the ‘average’ or

‘normal’ person was employed in

Roth to serve the essentially

negative purpose of expressing

our rejection of that aspect of

the Hicklin test, Regina v.

Hicklin (1868) L.R. 3 Q.B. 360,

that made the impact on the most

susceptible person determinative.

We adjust the prurient-appeal

requirement to social realities

by permitting the appeal of this

type of material to be assessed

in terms of the sexual interests

of its intended and probable

recipient group; and since our

holding requires that the reci-

pient group be defined with more

specificity than in terms of

sexually immature persons, it

also avoids the inadequacy of the

most-susceptible-person facet of

the Hicklin test." 383 U.S. at

508-509, 86 S.Ct. at 963-964

(Emphasis added).

In dismissing petitioner's contentions on

this subject, the Court of Appeals conceded

that "[s]ome support for petitioner's

position may be found in Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 56 n. 6

(1973). 551 F.2d at 1158-59 n.7. However,

the Court below held that (i) the Mishkin

opinion did not establish design of or

dissemination to a deviant group as a

prerequisite to a deviant appeal charge,

(ii) sufficiently specific definition of

the deviant groups involved was supplied

by the government's rebuttal witness, and

(iii) the deviant appeal instruction was

supported by Hamling v. United States,

418 U.S. 129 (1974). Id. at 1158-59.

These conclusions were each erroneous.

The government's rebuttal testimony

hardly constitutes a specific definition

of deviant groups. The rebuttal witness

did not define or describe the groups but,

in the words of the Court below, merely

said that the materials appealed to "the

prurient interest of homosexuals, sado-

masochists and those interested in group

sex." Id. at 1158-59 n. 7. Interestingly,

this witness testified that the same

material had prurient appeal to both

average and deviant persons [R. 588-89].

However, irrespective of the sufficiency

of that testimony to supply evidence of

clearly defined groups, there was no

evidence that the material was designed

for or disseminated to any such groups.

Moreover, the jury instructions omitted

any reference to either the requirement

that the deviant groups be clearly defined

or that the materials be designed for or

disseminated to such groups.

In Hamling v. United States, 418 U.S.

87 (1974), this Court did not purport to:

retreat from its exposition of the prin-

ciples governing bizarre materials in

Mishkin v. New York, 383 U.S. 501 (1966).

The issue considered in Hamling was whether

en lll

the jurors could consider whether some

portions of a work appealed to "a prurient

interest of a specifically defined deviant

group as well as whether they appealed to

the prurient interest of the average

person." 418 U.S. at 128. In Hamling,

as in Mishkin, there was ample evidence

of circumstances of production and massive

distribution from which some inference

could be drawn as to the design and dis-

semination of deviant materials to an

"intended and probable recipient group.”

Mishkin v. New York, 383 U.S. 502 (1966),

quoted in Hamling v. United States, 418

U.S. at 129. The Hamling opinion fully

restated the language in Mishkin referring

to material "designed for and primarily

disseminated to a clearly defined deviant

group." Id. at 129. In the instant case,

not only was evidence on this subject

totally lacking, but the jury was not even

instructed to consider the design and

pattern of dissemination of the materials.

By construing the language in Mishkin,

quoted in Hamiing, as mere surplusage and

truncating the prerequisites for submitting

the issue of deviant sexual appeal to the

jury, the Court below has departed from

the standards set down by this Court in a

manner which calls for review upon

certiorari.

IV.

This case presents important questions

concerning the submission of pandering

charges to 2 jury.

Two issues are presented by the pandering

instruction given to the jury in the district

court and affirmed by the decision below.

First, the record contained insufficient

evidence of pandering to support any

charge on this subject whatever. Secondly,

even if some pandering charge was justified

by the record, the instruction as given

included specific reference to contextual

matters upon which there was no evidence

whatever.

A. There was insufficient evidence

to support any charge of pandering.

The trial in this case was based upon

the materials themselves and a stipulation

that they were intentionally mailed by the

defendant for the personal use of the

several designated recipients. See 55l

F.2d at 1157. The lack of any evidence

concerning the context of the mailings

rendered it improper for the district

court to instruct the jury on pandering

in any manner whatever.

In both Ginzburg v. United States,

383 U.S. 463 (1966), and Mishkin v. New

York, 383 U.S. 502 (1966), the cases

which announced the principle that

pandering can be considered in assessing

the obscenity of materials, there was

"abundant evidence to show that each of

the publications was originated or sold

as stock in trade of the sordid business

of pandering...." Ginzburg v. United

States, 383 U.S. at 467. This evidence

included testimony on the defendant's

methods of operation, volume of mailings,

scope of public solicitation and the like.

Ibid., Cf. Mishkin, 383 U.S. at 505-506.

Similarly, in Hamling v. United States,

418 U.S. 87 (1974), which approved a

pandering instruction and reaffirmed the

principles of Mishkin and Ginzburg (see

418 U.S. at 130), there was extensive

evidence of the extent and methods of

distribution of the Illustrated Report

and brochure and detail concerning the

economics of the publication. Id. at

92-96. The brochure itself contained

substantial text from which editorial

intent could be gleaned. Id. at 93-94.

In sharp contrast, the trial below produced

no evidence of any kind on these subjects.

While certain of the materials were ads

or brochures, the government's case

falls far short of that which supported

the application of the pandering doctrine

in Ginzburg, Mishkin and Hamling. Never-

theless, the trial court instructed the

jury along the lines of the pandering

instruction in Hamling:

"Having covered the three elements

of obscenity, there is one addi-

tional matter that you may

consider, and that is the matter

of pandering. You must make the

decision whether the materials

are obscene under the test I have

given you. In making this deter-

mination you are not limited to

the materials themselves. In

addition, you may consider the

setting in which they are presented.

Examples of what you may consider

in this regard are such things

as: manner of distribution,

circumstances of production,

sale and advertising. The edi-

torial intent is also relevant.

What you are determining here is

whether the materials were produced

and sold as stock in trade of

the business of pandering. Pan-

dering is the business of purvey-

ing textual or graphic matter

openly advertised to appeal to

erotic interest of the customer."

551 F.2d at 1159.

While the general relevance and appropri-

ateness of this type of instruction was

again upheld in Splawn v. California,

U.S. , 45 L.W. 4574, 4575 (June 6,

1977), that decision did not consider

whether such an instruction is appropriate

where the record is devoid of any facts

concerning the context of publication and

distribution. In Splawn this Court noted

that its "authority to review jury instruc-

tions is a good deal broader" where the

prosecution is “under federal obscenity

Statutes...." Ibid. This case is thus a

timely vehicle for the establishment of

the principle that pandering instructions

cannot be routinely introduced in all

obscenity prosecutions irrespective of

the paucity of the record.

Earlier decisions of the Ninth Circuit

Court of Appeals refused to permit con-

victions under the pandering doctrine in

the absence of substantial evidence on

the subject. See United States v. Baranov,

418 F.2d 1051, 1053 (9th Cir. 1969); Grant

v. United States, 380 F.2d 748 (9th Cir.

1967). The instant case represents a

Significant departure from that principle

which should be nipped in the bud.

mesentepenenes - . , EEO Eee |

The pandering doctrine as formulated

in Ginzburg v. United States was a narrow

holding that "in close cases, evidence of

pandering may be probative with respect

to the nature of the material.... 383

U.S. at 474. As discussed above, the

application of the doctrine in Ginzburg

and Mishkin was based upon substantial

evidence of the context of the distribution

from which pandering could be regarded as

proven. This Court's decisions in Hamling

and Splawn have now reaffirmed its earlier

holdings concerning the relevance of

evidence of pandering. However, as demon-

strated by the decisions below in this case,

it is now necessary for this Court to

reaffirm that the rpc gene Po te en gy

Ginzburg and Mishkin holdings w ;

eo =, in effect, and that substantial

evidence of pandering is a precondition

to the injection of pandering as an issue

in an obscenity trial.

B. The charge on pandering invited

the jury to consider matters not in evidence.

Even if the jury might have been

entitled to consider the content of the .

brochures or advertisements under a pandering

charge (which petitioner denies), the

charge in this case went far beyond that

content. The trial judge instructed the wa

jurors that they could consider the ‘setting

in which the materials are presented,

including "manner of distribution, circum- ,

stances of production, sale and advertising.

[R. 810]. There was no evidence whatever

on manner of distribution, sale or adver- P

tising of the materials other than the bal

stipulation that they were mailed for the

personal use of the recipient. And there

was no evidence whatever concerning circum-

Stances of production. Accordingly, this

instruction invited the jury to consider

matters not in evidence.

The Court of Appeals below approved

the charge on the basis that the items

enumerated by the trial judge were only

examples, and that because the occupations

of the recipients were known to the jurors,

they could infer that distribution was not

to a particular professional group. 551

F.2d at 1160. However, the occupations

of the recipients could supply no inference

whatever as to the circumstances of pro-

duction, sale or advertising, nor any of

the sort of detail concerning manner of

distribution which has been present in

other cases where this Court has approved

of pandering charges.

The critical importance of the pandering

instruction is unmistakably evident from

the fact that the jury specifically asked

for a rereading of that instruction after

it had retired to deliberate [R. 821]. In

fact, this request was the only question

submitted by the jury during its delibera-

tions. Thus the objectionable language

quoted above was repeated to it a second

time, and received additional emphasis.

This Court has held that it is error

to give even a correct charge on facts

which are not in evidence.

"It is clearly error in a court

to charge a jury upon a supposed

or conjectural state of facts,

of which no evidence has been

offered. The instruction

ee ee

i ne ed Wess es

presupposes that there is some

evidence before the jury which

they may think sufficient to

establish the facts hypothetically

assumed in the opinion of the

court; and if there is no evidence

which they have a right to consider,

then the charge does not aid them

in coming to correct conclusions,

but its tendency is to embarrass

and mislead them. It may induce

them to indulge in conjecture, :

instead of weighing the testimony.

United States v. Breitling, 20

How. 252, 254-55, 61 U.S. 252,

254-55 (1858).

The lack of evidence on the specific

matters upon which the trial judge invited

the jurors to speculate is sufficient

cause for reversal.

* * *

The Court below confirmed, ae Sees

istence of numerous improprieties

peep cenyest se of this case. It disapproved

of an instruction including children in

the community for purposes of assessing

community standards. 551 F.2d at 1158.

It concurred that there was error in over~

ruling the motion to strike inflammatory

testimony of a government witness. Id.

at 1161-62. It conceded that permitting

cross-examination of a defense witness on

the effect of pornography on children might

have been erroneous, (Id., at 1160), and

its threshold review of the exclusion

of defense comparison evidence pointed

toward error. 551 F.2d at 1161. The ;

affirmance of petitioner's conviction in

the face of these multiple irregularities

can best be explained by the Court's con-

clusion that "[t]he evidence of obscenity

was...overwhelming...." (Id. at 1160), and

its inference that petitioner had commercially

exploited the materials. Id., at 1159-60.

In the context of these multiple pro-

cedural and evidentiary abuses, the review

of this case on certiorari assumes an

importance which transcends each error

considered separately. The mass of obscen-

ity litigation pending in the state and

federal courts must inevitably foster a

dangerous judicial temptation, exemplified

by the affirmance in this case, to sustain

a conviction irrespective of all attendant

irregularities of procedure and evidence

whenever the Court perceives that the

defendant is a pornographer and the materials

are obscene.

In Roth v. United States, 354 U.S.

476 (1957), this Court held that “obscenity

is not within the area of constitutionally

protected speech or press." Id. at 485.

This exception carved from the constitu-

tional immunity generally accorded expression

was retained in Miller v. California, 413

U.S. 15, 23 (1973). The notion that porno-

graphic materials are not entitled to even

a “modicum” of protection against criminal

sanctions has been questioned. See, for

example, Smith v. United States, 45 L.W.

4495, 4500 (May 23, 1977, Stevens, J.

dissenting). However, it has never been

suggested that the process of differentiating

protected from unprotected is less entitled

to fairness and precision than other

determinations vnder criminal procedure.

To the contrary, the majority opinion in

i = =

, »

Miller noted the necessity of reliance

upon the "rules of evidence, presumption

of innocence, and other protective

sections..." in “resolving the inevitably

sensitive questions of fact and law...."

Id. at 26.

A proper regard for the chilling

effect of obscenity prosecutions, as well

as the fundamental fairness essential to

all criminal trials, requires that special

care be exercised by the appellate courts

to assure that the prosecution of distri-

butors of materials claiming First Amend-

ment protection is conducted with every

regard for proper procedure. Such care

was utterly lacking in the judicial

treatment of petitioner.

Certiorari should be granted for the

purpose of emphasizing that even a defendant

accused of being a pornographer is entitled

to a fair trial.

CONCLUSION

For the foregoing reasons, petitioner

respectfully urges this Court to grant

the writ of certiorari and accept this

case for review.

Respectfully submitted,

BERNARD A. BERKMAN

JOSHUA J. KANCELBAUM

BERKMAN, ~“ORDON, KANCELBAUM and LEVY

ELLIOT J. ABELSON

LAPPEN, ABELSON and HARRIS

Attorneys for Petitioner

(filed June 6, 1977)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF No. 76-1393

AMERICA,

Plaintiff-Appellee,

Vv.

WILLIAM PINKUS, ORDER

doing business as

"Rosslyn News

Company" and

"Kamera",

)

Defendant-Appellant.

APPENDIX

Before: WRIGHT and WALLACE, Circuit

Judges, and ORRICK, District

Judge.

The panel as constituted in the above

case has voted to deny the petition for

rehearing. Judges Wright Wallace have

voted to reject the en banc suggestion.

The full court has been advised of

the suggestion for an en banc hearing,

and no judge of the court has requested

a vote on the suggestion for rehearing

en banc.

The petition for rehearing is denied

and the suggestion for a rehearin n

banc is rejected.

DATED:

(filed April 7, 1977)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF No. 76-1393

AMERICA,

Plaintiff-Appellee,

WILLIAM PINKUS, OPINION

doing business as

"Rosslyn News

Company” and

"Kamera",

Defendant-Appellant.

Appeal from the United States

District Court for the Central

District of California

Before: WRIGHT and WALLACE, Circuit

Judges, and ORRICK, District

Judge. *

WRIGHT, Circuit Judge:

On this appeal from a conviction on

ll counts of mailing obscene materiall/

in violation of 18 U.S.C. §1461 (1970) ,2/

we are presented with nine claims of

error, of which several require extended

*Of the Northern District of California;

Honorable William H. Orrick, District

Judge, sitting by designation.

ow ee —

consideration. They direct our attention

to the adequacy and propriety of the jury

instructions and the trial court's refusal

to admit in evidence for jury viewing two

full length motion pictures which are said

to be hox office successes, if not smash

hits, at least with some audiences. We

conclude that the trial was fairly conducted,

without reversible error, and the judgment

and sentence must be affirmed.

At trial, the government's case-in-

chief consisted of the introduction of

the obscene materials and the reading of

a stipulation that they were voluntarily

and intentionally mailed by the appellant

with knowledge of the content and with

the intention that they be for the personal

use of the recipient. It was also stipu-

lated that none had been mailed to child-

ren.

The defense introduced expert and

survey evidence to prove that the materials

did not appeal to prurient interests or

exceed community standards, and that they

had redeeming social value.3/ In rebuttal,

the government called a family counseler

who testified, among other things, that

the materials had prurient appeal to the

average person in the community as well

as to sexually deviant groups.

JURY INSTRUCTIONS

Appellant challenges four portions

of the jury instructions and contends, as

a fifth claim of error, that the court

erred in refusing a requested instruction.

We consider first whether there was

reversible error in any instruction.

A. Sensitive Persons.

The court instructed the jury :4/

Thus the brochures, magazines

and film are not to be judged

on the basis of your personal

opinion. Nor are they to be

judged by their effect on a

particularly sensitive or in-

sensitive person or group in

the community. You are to judge

these materials by the standard

of the hypothetical average

person in the community, but in

determining this average standard

you must include the sensitive

and the insensitive, in other

words, you must include everyone

in the community.

Appellant contends that, by including

the sensitive and the insensitive in

determining the standard of the hypothetical

average person in the community, the jury

would not be adhering to the precept in

Miller v. California, 413 U.S. 13, 33 (1973),

that the material “be judged by its impact

on the average person, rather than a

particularly susceptible or sensitive person--

or indeed a totally insensitive one," and

therefore the instruction was erroneous.

We disagree. The Supreme Court has

frequently held that jury instructions are

to be judged as a whole, rather than by

picking isolated phrases from them. Boyd

v. United States, 271 U.S. 104, 107 (1926);

Tee een ee ee Tee ee TE ee a) een eee wee Ree on Maa. 8 Cee nee Set ae Deane Seen: end rae dnuiditns nical nin eeasnsiiapmnaddienn same

Hamling v. United States, 418 U.S. 87,

107-108 (1974); see also Unites States v.

Moore, 522 F.2d 1068, 1079 (9th Cir. 1975),

cert. denied, 423 U.S. 1049 (1976). The

judge's reference here to the sensitive

ana the insensitive was merely an elabora-

tion on the concept of the total community.

The trial judge specifically said

that the hypothetical average person

standard was to be used and that the

materials were not to be judged by their

effect on a particularly sensitive person.

The instructions were not inconsistent

with Miller v. California, supra.

B. Children in the Community.

Another challenged portion of the

instructions stated: 2/

In determining community

standards, you are to consider

the community as a whole, young

and old, educated and uneducated,

the religious and the irreligious,

men and women and children, from

all walks of life.

Appellant objects to the word children

in the court's definition of community.

Although we note that the Second Circuit

has upheld a virtually identical instruc~

tion in United States v. Manarite, 448

F.2d 583, 592 (2d Cir.), cert. denied,

404 US.. 947 (1971), we find no reversible

error here, not because of the outcome in

Manarite, but because of the lack of

authority against such an outcome. We do

not imply that we approve this language.

Rather, we feel that the specific inclusion

of children is unnecessary in the defini-

tion of the community and prefer that

children be excluded from the court's

instruction until the Supreme Court clearly

indicates that inclusion is proper.

At present, the Supreme Court has

both upheld a conviction involving the

inclusion of children in the community

[see Roth v. United States, 354 U.S. 476,

490 (1957)] and intimated that it does

not necessarily approve such a charge.

See Ginzburg v. United States, 383 U.S.

463, 465 n.3 (1966). Although the Court

has emphasized that the jury is to ascer-

tain the sense of the “average person,

applying contemporary community standards"

when deciding the obscenity question [see

Hamling v. United States, 418 U.S. 87,

105 (1974)], it has not defined the term

community in other than a geographical

sense.

The instruction in this case did not,

as appellant contends, result in reducing

the adult population of the Central Judi-

cial District of California to reading

what is fit only for children. Compare

Butler v. Michigan, 352 U.S. 380 (1957).

The entire community was explicitly made

the appropriate standard for consideration.

The error, if any, does not require rever-

sal.

C. Deviant Sexual Groups.

Relying on Mishkin v. New York, 383

U.S. 502 (1966), appellant next challenges

that portion of the instruction which

reads:&

In applying this test, the

question involved is not how

the picture now impresses the

individual juror, but rather,

considering the intended and

probable recipients, how the

picture would have impressed

the average person, or a member

of a deviant sexual group at

the time they received the

picture.

He interprets Mishkin to hold that a

deviant-appeal instruction cannot be given

unless there is sufficient evidence to

establish that the material was designed

and disseminated to a deviant group, as

well as evidence which clearly defines

that group and shows that it was involved

in some way this these materials. Although

Mishkin stated that Roth did not foreclose

a finding of obscenity when the foregoing

was proved, it did not hold that such

evidence was a prerequisite to such a

charge.

The only requirement imposed along

the lines appellant suggests was that "the

recipient group be defined with more speci-

ficity that in terms of sexually immature

persons." Id. at 509. This requirement

was met by the testimony of the government

rebuttal witness. 7/

Our case is similar to Hamling v.

United States, supra, where the district

court instructed as to the prurient

interest of deviant groups even though

there was no evidence as to specific

deviant appeal. The court of appeals

found no error, stating that it was

8a 9a

Appellant contends that there was

insufficient evidence to support a charge

of pandering ard that in any event the

charge invited the jury to consider matters

not in evidence, such as manner of distri-

bution and circumstances of production

(the stipulation stating only that the

materials had been intended and mailed

for personal use).

"'manifesc that tne District Court consi-

dered that some of the portrayals in the

Brochure might be found to have a prurient

appeal' to a deviant group.” Id. at 128.

The Supreme Court affirmed. That reasoning

is applicable here. See also, United

States v. Hill, 500 F.2d 733 (5th Cir.

1974), cert. denied, 420 U.S. 952 (1975).

D. Pandering.

jury

The trial judge also instructed the

on pandering, stating: 8/

Having covered the three

elements of obscenity, there is

one additional matter that you

may consider, and that is the

matter of pandering. You must

make the decision whether the

materials are obscene under “he

test I have given you. In

making this determination you

are not limited to the materials

themselves. In addition, you

may consider the setting in which

they are presented. Examples

of what you may consider in this

regard are such things as:

manner of distribution, circum-

stances of production, sale and

advertising. The editorial

intent is also relevant. What

you are determining here is whether

the materials were produced and

sold as stock in trade of the

business of pandering. Pandering

is the business of purveying

textual or graphic matter openly

advertised to appeal to erotic

interest of the customer.

Appellant relies on United States v.

Baranov, 418 F.2d 1051 (9th Cir. 1969),

for the proposition that mere proof of

mailing does not support a pandering

charge. See also Redrup v. New York,

386 U.S. 767 (1967).

United States v. Pellegrino, 467 F.2d

41 (9th Cir. 1972), provides a good frame-

work for analyzing whether there is

evidence of pandering in a case where the

charged materials, not stipulated to be

nonobscene as in Baranov, are available

for examination. In Pellegrino we noted

that the question of pandering is not

wholly irrelevant in the case of adver-

tising; that mass mailings can be consistent

with a nonobscene publication as well as

with an obscene one; and that the text of

the material is not to be ignored in

determining whether there is "commercial

exploitation of erotica solely for the

sake of their prurient appeal. 383 U.S.

at 466." Pellegrino, 467 F.2d at 45-46.

In Pellegrino, the brochure contained

chaste and self-serving disclaimers of

obscene theme which were not transparently

spurious. The persistent theme of the

brochure was that the book it advertised

was worth buying because it imparted

10a

knowledge and understanding of materials

of importance to all adults. Id. at 46.

Our review of the exhibits in this case :

makes it clear that we have here quite a

different situation. In fact, many elements

of pandering identified in Ginzburg v.

United States, 383 U.S. 463 (1966), are

present.

In identifying pandering, the Court

in Ginzburg noted that the “leer of the

sensualist" permeated the advertising,

the solicitation was indiscriminate and

not limited to those who might independently

discern the material's therapeutic worth,

the petitioner deliberately represented

his materials as erotically arousing, and |

such representations tended to force public

confrontation with potentially offensive

aspects of the work. 383 U.S. at 486-70.

In this case, although the mailing

location was not chosen for its impact

value as in Ginzburg, all other elements

noted above that the Court found deter-

minative of pandering were present. We

find, therefore, that there was sufficient

information in the stipulation and the

materials themselves to support a pandering

charge.

As to the charge itself, we find no

error in the mention of manner of distri-

bution and methods of production as

examples of what the jurors could consider

in addition to the materials themselves.

Although the stipulation did not detail

appellant's method of operation in terms

of how the recipients were chosen and what

the precise method of production was, it

did contain information such as the

lla

occupation of the recipients, from which

the jury could infer that no particular

professional group was singled out for

distribution. The charge did not instruct

the jury to consider matters not in evi-

dence.

As a fifth allegation of error,

appellant contends that it was error for

the court to refuse to instruct the jury

that minor children were not involved in

the case. We find no error. It was clear

from the stipulation that children were

not involved and that none had been recip-

ients of the mailed materials. Addition-

ally, the jurors were told during voir

dire that no children were involved. We

do not find other alleged improprieties

concerning the intrusion of children into

the case sufficient to make the ruling

erroneous.

Il.

EVIDENTIARY RULINGS

A. Cross-examination.

Appellant contends that the court

erred in allowing cross-examination of a

defense witness on the possible deleterious

influence of the materials on young children.

As the Court recently stated in

United States v. Hamling, 418 U.S. at

124-25:

Petitioners have very much

the laboring oar in showing that

such rulings constitute rever-

sible error, since "in judicial

12a

trials, the whole tendency is to

leave rulings as to the illumina-

ting relevance of testimony

largely to the discretion of

the trial court that hears the

evidence." NLRB v. Donnelly Co.,

330 U.S. 219, 236 (1947).

We conclude that any error was harmless.

The total testimony as to the effect of

the materials on young children was only

three or four pages in a transcript of

more than 600 pages. The evidence of

obscenity was so overwhelming that this

bit of testimony provides no basis for

reversible error.

B. Comparable Materials.

The appellant also challenges the

judge's ruling that the jury would not be

allowed to view the allegedly comparable

films of "Deep Throat" and "The Devil in

Miss Jones."

Preliminarily we note that the trial

judge did not indicate specifically his

ground for refusing admission of the

evidence. Initially he ruled that no

proper basis had been established?/and

later he stated that the movies were not

"proper" for the jury to see . 10,

Although this makes review more

difficult, it is well-settled that "if

the decision below is correct, it must

be affirmed, although the lower court

relied upon a wrong ground or gave a wrong

reason." Helvering v. Gowran, 302 U.S.

238, 245 (1937). We shall consider the

applicable law to determine if there is

13a

any ground upon which the evidence could

properly have been refused.

"The defendant in an obscenity

prosecution, just as a defendant in any

other prosecution, is entitled to an oppor-

tunity to adduce relevant, competent evi-

dence bearing on the issues to be tried."

Hamling v. United States, 418 U.S. at 125.

In this circuit, however, for the films

to be admissible as comparable and proba-

tive of community standards the burden is

on the defendant to demonstrate two pre-

requisites: (1) a reasonable resemblance

between the proffered comparables and the

allegedly obscene materials, and (2) a

reasonaSle degree of community acceptance

of the proffered comparables. United

States v. Jacobs, 433 F.2d 932, 933 (9th

Cir. 1970).

We have viewed the two allegedly

comparable films as well as all the other

exhibits in this case. We conclude that

"Deep Throat" and "The Devil in Miss Jones"

bore a reasonable resemblance to the film

"No. 613" identified in count 9 of the

indictment, but not to the other materials

identified in the other 10 counts.

The three films were similar because

they presented the same or similar sexual

acts with an equal degree of explicitness.

Thus the first prong of the Jacobs test

was met as to them. The brochures and

magazine, however, were of a different

medium, and as one court has noted "slight

variations in format" may produce “vastly

different consequences in obscenity deter-

minations." United States v. Womack, 509

F.2d 368, 378 (D.C. Cir. 1974), cert.

l4a

denied, 422 U.S. 1022 (1975). Moreover,

the brochures advertised materials per-

taining to homosexuality and sadobondage.

These subjects were not portrayed in the

two proffered films. As to the brochures

and the rest of the exhibits, exclusive

of film "No. 613", we find that the first

prong of Jacobs was not met and the trial

judge committed no error in exercising

his discretion to deny the offer of the

two films into evidence.

This circuit has adopted the concurrent

sentence doctrine which, as enunciated by

the Supreme Court in Benton v. Maryland,

395 U.S. 784, 791 (1969) ‘s that a federal

appellate court, as a me’. ~- of discretion,

may decide that it is um. cessary to con-

Sider arguments advanced by an appellant

with regard to his conviction under one

Or more counts of an indictment, if he was

at the same time validly convicted of other

offenses under other counts and concurrent

sentences were imposed. United States v.

Moore, 452 F.2d 576, 577 (9th Cir. 1971);

United States v. Paduano, F.2d

(9th Cir. Jan. 25, 1977) (slip op. at 6);

United States v. Ratcliffe, F.2d

(9th Cir. Dec. 16, 1976) (slip op. at 3).

Pinkus was sentenced to four years

on each of the eleven counts, the sentences

to run concurrently. We therefore decline

to examine the question whether he demon-

strated sufficient community acceptance

of the comparable films to warrant our

finding that the trial judge erred in

excluding the evidence with respect to

count 9.

eo, OO

15a

IIl.

DEFENSE MOTIONS

A. Motion for Acquittal.

Appellant contends that the court

erred in denying his motion for acquittal

at the end of the government's case. The

basis for the motion was that the govern-

ment failed to introduce expert testimony

to support a claim of deviant appeal. As

discussed in Part I, supra, appellant's

cases do not support his contention.

Mishkin and Hamling allow us to conclude

that the materials speak for themselves

on this matter.

B. Motions to Strike and for Mistrial.

Appellant also moved to strike and

for a mistrial in response to the following

testimony of the government rebuttal

witness: "In the case that I'm currently

dealing with the father molested his own

daughter after having come from an adult

book store."11/ Both motions were denied.

Because no foundation had been laid

to connect the materials viewed by the

father with those at issue in this case,

we agree with the appellant that this was

a situation “where the minute peg of

relevance [was] entirely obscured by the

dirty linen hung upon it.” Lucero v.

Donovan, 354 F.2d 16, 22 n.7 (9th Cir.

1966). The error in denying the motion

to strike, however, is not so severe, when

viewing the entire case, as to require

reversal. Denying the motion for mistrial

was proper.

l6a

The decision of the district court

is AFFIRMED.

Oe ONS Oa EE SO we Ne) eta or ER OE et

Ae Oe be lh Aa 8 ae ct ttl Mit 6 A OEE ie Ae ON ND ee 8 OE AO Ne Ole a che MO ate AE tet

17a

FOOTNOTES

The indictment recited that Pinkus

had mailed obscene illustrated brochures

advertising sex films, books, magazines

and playing cards; the magazine "Bedplay";

and an 8 mm. film, “No. 613," to

addressees in Nevada, New York, Iowa,

Pennsylvania, Texas and New Jersey.

Title 18 U.S.C. § 1461 provides in

pertinent part:

"Every obscene, lewd,

lascivious, indecent, filthy or

vile article, matter, thing,

device, or substance; and --

"Every written or printed

card, letter, circular, book,

pamphlet, advertisement, or notice

of any kind giving information,

directly or indirectly, where,

or how, or from whom, or by what

means any of such mentioned matters,

articles, or things may be obtained

or made.

"Is declared to be nonmailable

matter and shall not be conveyed

in the mails or delivered from

any post office or by any letter

carrier.

"Whoever knowingly uses the

mails for the mailing, carriage

in the mails, or delivery of

anything declared by this section

300l(e’ of Title 39 to be non-

mailable, or knowingly causes

18a

to be delivered by mail according

to the direction thereon, or at the

place at which it is directed to

be delivered by the person to

whom it is addressed, or knowingly

takes any such thing from the

mails for the purpose of circu-

lating or disposing thereof, or

of aiding in the circulation or

disposition thereof, shall be fined

not more than $5,000 or imprisoned

not more than five years, or both,

for the first such offense, and

shall be fined not more than

$10,000 or imprisoned not more

than ten years, or both, for each

such offense thereafter. ..."

3/ In the conviction appealed from, the

Roth-Memoirs standard for determining

obscenity was used. See Roth v. United

States, 354 U.S. 476 (1957) and Memoirs

v. Massachusetts, 383 U.S. 413 (1966).

The Memoirs Court restated the Roth

test in the following manner:

"as elaborated in subsequent cases,

three elements must coalesce: it

must be established that (a) the

dominant theme of the material taken

as a whole appeals to a prurient

interest in sex; (b) the material

is patently offensive because it

affronts contemporary community

standards relating to the descrip-

tion or representation of sexual

matters; and (c) the material is

utterly without redeeming social

value."

383 U.S. at 418.

a HT

nN 5 om ~

19a

Reporter's Transcript at 807.

Reporter's Transcript at 808.

Reporter's Transcript at 806-07.

The witness testified that there was

appeal in the materials to the prurient

interests of homosexuals, sado-masochists

and those interested in group sex.

Some support for appellant's position

may be found in Paris Adult Theatre I

v. Slaton, 413 U.S. 49, 56 n.6 (1973),

where the Court, in discussing that

obscene materials speak for themselves

and no expert affirmative evidence.is

necessary when the materials are actually

placed in evidence, qualified its

duscussion by noting: "We reserve

judgm nt, however, on the extreme case,

not presented here, [group sex, fellatio,

and cunnilingus were present in that

case] where contested materials are

directed at such a bizarre deviant

group that the experience of the trier

of fact would be plainly inadequate to

judge whether the material appeals to

the prurient interest." But see discussion

of Hamling in text, infra.

Reporter's Transcript at 810.

Reporter's Transcript at 171.

Reporter's Transcript at 693.

Reporter's Transcript at 579.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.