Respondents Brief — Pinkus v. United States

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[> Sapreme Court US

FILED

JAN 27 1978

= RODAK, JR., CLERK

N oO. 77-39

Jn the Supreme Gourt of the Waited States

OctosEer TERM, 1977

Wiuu1amM Pinxus p/B/A “Rosstyn News Company”

AND “KAMERA”’, PETITIONER

Unrrep States or AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPRALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

INDEX

GEER Wa Bacccccunsheernqeusseceenesssee

PIPER EE ce Deena | LS ee we

BID caausdnanenetmeenhantenwedteoenece

C. The opinion of the court of appeals_..-

Summary of argument..................-..-

Argument: |

I. The district court properly in-

structed the jury to consider

“the sensitive and the insensi-

tive” in “the community as a

whole,”’ as well as “men, women

and children, from all walks of

ee’ cunchiincsinacddnnontadeen

mitting the district court to in-

struct the jury that it could find

the material obscene if it ap-

pealed to the prurient interest in

sex of members of a deviant sex-

UAl GIOUP Qn ccc ccwcceacecee

III. The evidence justified the instrue-

258-888 T8 — 1

— Z

-wwoKwwnryH

Argument—Continued Page

IV. The district court properly ex-

cluded two films, “Deep Throat”’

and “The Devil in Miss Jones,”

as comparison evidence_....-.~. 40

Constusies adicnqastedotnduccncescusccescese 47

CITATIONS

Cases :

Butler v. Michigan, 352 U.S. 380_...-~---- 26

Cupp v. Naughten, 414 U.S. 141..--~.---- 18, 21

Dunlop vy. United States, 165 U.S. 486... 45

Ginhone 6 United States, 383 U.S. 463_. passim

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

Jacobellis v. Ohio, 378 U.S. 184...------- 19, 20

Jeffers v. United States, No. 75-1805, de-

cided June 16, 1977.......-....-..-.-.-. 40

Jenkins v. Georgia, 418 U.S. 153.....-- on 28

Kaplan v. California, 413 U.S, 115_...---- 28

Mangum v. Maryland State Board of Cen-

sors, 273 Md. 176, 328 A. 2d 283_....... 45

Manual Enterprises v. Day, 370 US.

ee 19, 28, 38

Memoirs v. Massachusetts, 383 US.

a passim

Miller vy. California, 413 U.S, 15... 3, 19, 23, 30, 45

Mishkin v. New York, 383 U.S. 502.....-- 15,

20, 28, 29, 30, 31, 34

Papish v. Board of Curators, 410 U.S. 667- 38

Paris Adult Theatre I v. Slaton, 413 U.S.

a aa SC

People v. Mature Enterprises, Ine., 352

N.Y.S. 2d 346, 76 Mise. 2d 660........- 45

Roth v. United States, 354 U.S. 476_....- passim

Sanders v. State, 294 Ga. 186, 216 8.E. 2d

838 .....- 45

Cases—Continued

Smith v. California, 361 U.S. 147_....~.. 32, "6

Smith v. United States, 431 U.S. 29)_.-.. 19,

21, 23, 29, 45

Splawn v. California, 431 U.S. 595.....-.. 35

State v. American Theater Corp., 194 Neb.

04, 900 W.W. 26 BiBencccececccescence 45

State ex rel. Cahalan vy. Diversified Theat-

rical Corp., 59 Mich. App. 223, 229 N.W.

Oe a ee eee

United States v. Allen, 554 F. 2d 398, certi-

orari denied, No. 76-1851, October 3,

United States v. Baranov, 418 F. 2d 1051_. 38

United States vy. Birnbaum, 373 F. 2d 250,

certiorari denied, 389 U.S. 837.......... 18

United States v. Cutting, 538 F. 2d 835,

certiorari denied, 429 U.S. 1052_....... 20

United States v. Dachsteiner, 518 F.2d20.. 39

United States v. Groner, 479 F. 2d 577,

vacated and remanded, 414 U.S. 969, on

remand, 494 F. 2d 499, certiorari denied,

ON erase Ff

United States v. Hamling, 481 F.2d 307... 30

United States v. Jacobs, 433 F. 24 932____. 42

United States v. Kennerley, 209 Fed. 119.. 20

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

certiorari denied, 40° U.S, 947........- 26, 44

United States v. Marks, 520 F. 2a 913, re-

versed, 430 U.S. 188, convicted on retrial,

E.D. Ky., No. 11,057, September 9, 1977,

appeal pending, C.A. 6, No. 77-5382_... 3, 45

United States v. One Reel of Film, 360 F.

Supp. 1067, affirmed, 481 F. 24 206_____ 44, 45

United States v. One Reel of Film, 481 F.

96 BEB. ncccccacccecessectoscesaducese 43, 45

United States v. Palladino, 490 F. 2d 499_. 32

United States v. Park, 421 U.S. 658....... 18, 21

United States vy. Pellegrino, 467 F.2d 41.. 38

United States vy. Ratner, 502 F. 2d 1300,

certiorari denied, 423 U.S. 898_....-... 39

United States vy. Treatman, 524 F. 2d 320_. 23

United States v. Wasserman, 504 F. 2d

SUED Lnhbcctcsudiamdnnbodinsbmncnans 39

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

certiorari denied, 422 U.S. 1022_..-- 42, 43, 46

Virginia State Board of Pharmacy v. Vir-

ginia Citizens Consumer Council, Inc.,

CD UE, Felbutacnadtancéscsancunnscese 35

Ward v. Illinois, 431 U.S. 767.....------. 30, 31

Statute:

BD We Be ncccdatingcebnandvcnnactuce 3

Miscellaneous :

Bureau of the Census, 1970 Census of Pop-

ulation, Characteristics of Population for

a 1 a Se ee 44

Gn the Supreme Gourt of the United States

OctToBerR TERM, 1977

No. 77-39

WuusAm Pinxus D/B/A “RossLyn NEws Company”

AND “KAMERA”, PETITIONER

Unrrep States oF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

The opinion of the court of appeals (Pet. App. 2a—

19a) is reported at 551 F. 2d 1155.

The judgment of the court of appeals was entered

on April 7, 1977. A petition for rehearing was denied

on June 6, 1977 (Pet. App. 1a). The petition for a

writ of certiorari was filed on Juiy 6, 1977, and was

granted on October 31, 1977 (A. 66). The jurisdic-

tion of this Court rests upon 28 U.S.C. 1254(1).

(1)

QUESTIONS PRESENTED

1. Whether in a federal prosecution for mailing ob-

seene materials and advertisements therefor, the dis-

trict court’s instructions, following the applicable

Roth-Memoirs* standard, properly charged the jury:

(a) not to judge the materials on a personal basis,

or “by their effect on a particularly sensitive or insen-

sitive person or group,”’ but rather “by the stand-

ard of the hypothetical average person,” which is to

be determined by considering “the sensitive and the

insensitive, in other words * * * everyone in the com-

munity”; and

(b) to consider “the community as a whole, young

and old, educated and uneducated, the religious and ir-

religious, men, women and children, from all walks of

life.”

2. Whether the record contained evidence permitting

the district court to instruct the jury that, in deter-

mining whether the material appeals to the prurient

interest, it should consider the interests of the average

person in the community as a whole or of members of

a deviant sexual group.

3. Whether the evidence justified the district court’s

instruction on pandering.

4. Whether the district court properly excluded two

films offered by petitioner as comparison evidence to

show that the materials involved were not obscene un-

der contemporary community standards in the Central

District of California.

Roth v. United States, 354 U.S. 476; Memoirs v. Massachusetts,

383 U.S. 413.

Petitioner was convicted by a jury in the United

States District Court for the Central District of Cali-

fornia on 11 counts (A. 3-8) charging that he had

mailed obscene materials or advertisements for ob-

seene materials, in violation of 18 U.S.C. 1461. The

court of appeals reversed his first conviction because

the jury had been charged under the standards set

forth in Miller v. California, 413 U.S. 15, even though

the offenses alleged occurred in 1971, when the Roth-

Memoirs (Roth v. United States, 354 U.S. 476; Mem-

otrs v. Massachusetts, 383 U.S. 413) standard applied.

See Marks v. United States, 430 U.S. 188. The case

was therefore remanded for a new trial under

Roth-Memoirs. United States v. Pinkus, C.A. 9,

No. 73-2900, decided April 1, 1975. In 1976, after a

jury trial under the Roth-Memoirs standard, peti-

tioner again was convicted on all 11 counts. He was

sentenced to concurrent terms of four years’ imprison-

ment and was fined $500 on each count, for a cumula-

tive total fine of $5,500.* The court of appeals affirmed

(Pet. App. 2a-19a).

A. THE EVIDENCE

1. The government’s case in chief consisted of the

mailed materials, exhibits and a stipulation of facts

(A. 13-18; Tr. 134-141). Petitioner stipulated that

* After petitioner's second conviction he was initially fined

$1,000 on each count, but in June 1976 the district court reduced

the fine to $500 per count so as not to exceed the amount that

petitioner had been fined after his conviction at his first trial,

he had “voluntarily and intentionally” used the mails

on 11 occasions to deliver ‘‘illustrated broehure[s]

advertising sex films, books and magazines” as well as

a film, “613,’’ and “Bedplay”’ magazine, with the in-

tention that these materials be for the ‘‘personal use

of the recipient[s]” (ibid.). The recipients of this

material, by implication in the stipulation, were

adults (A. 12; Tr. 59, 61) who resided in various

cities and states across the country (ibid.).

Each of the eleven exhibits consisted of an outside

envelope addressed to the recipient, stamped from Pit-

ney Bowes postage meter No. 621316, and printed with

the return address of Kamera’s office (G. Exs. 1-11).

Each outer envelope also contained a preaddressed

return envelope for use in ordering the advertised

materials (G. Exs. 1A, 2B, 3B, 4B, 5B, 6B, 7H, 8B,

9G, 10B, 11D).

In addition, each mailing included at least one four

page black and white illustrated brochure advertising

films, books and magazines relating entirely to sex.*

The brochure in four of the mailings included an ad-

vertisement for “Bedplay” magazine, and several

other magazines, consisting of a photograph of the

cover of the magazine next to a photograph focusing

* In one mailing (G. Ex. 11C) petitioner also included a green

sheet of paper which indicated that he “acquired [the recipient’s]

name by buying out another mail order house,” and requested that

the recipient “check the proper box indicating the type of mer-

chandise [he is] most interested in receiving from us,” as follows :

“[] Novelties (Rubber Goods)

“[] Fetish (a serious study of Corporal Punishment, etc.)

“[] Gay (Paperbacks, Films, Magazines, Picture Sets)

“[] Hetero (Magazines, Books, Films) .”

on the genitals of a man and woman engaged in sexual

intercourse. The cover of “Bedplay” itself por-

trayed the faces of two women lying on either side of

an erect penis; seminal fluid is clearly visible on the

cheek of one of the women. Another page of the

brochure is devoted to photographs displaying explicit

sexual conduct and advertising for sale films dealing

with lesbianism, sex with artificial devices, group sex,

fellatio and cunnilingus.‘ The third page, entitled

“Male Order,’’ is devoted to materials aimed at

homosexuals, has pictures of oral and anal intercourse

and advertises a magazine “Young and Ready.” The

final page of the magazine advertises ‘‘bondage”

magazines and has a clip out order form to be used

in ordering any of the materials advertised in the

brochure. The brochures involved in each count con-

tain a similar order form (G. Exs. 1B, 2A, 3A, 7B).

“Bedplay’’ magazine itself was one of the mailed

objects involved in Count 7 (see, e.g., G. Ex. 7A). It is

a thirty-two page magazine which sells for $10 and

contains color photographs on each page with little

or no written material.’ The photographs focus on

~ «A caption for the film “Mustachioed Magic” is illustrative.

It states: “No Mr. America, but equal in stamina and stamen.

His honey blond sex partner really stirs him up in the process and

we are sure you will be too.”

* A few of the captions for the pictures state: “We counted and

no less than thirty-five shots from the silver screen, and all came

from the old flasheroo, * * * It’s a good point that beauty is what

sells even unto the realm of porno films. There’s nothing more

profitable than a pretty girl, be she clothed and retouched in a

atic meaife enniguaiae SE ging tend Ghee'p Ret ace it 0

stag film.”

253-888 78 _—-2

the genitals of persons engaged in fellatio, cunnilingus,

masturbation, anal intercourse and group sex.

Brochures advertising the film “613” were included

in two mailings (G. Exs. 8A and 9B). These brochures

resembled those previously described but also con-

tained an advertisement for a magazine “Female

Pedophilia—A Study of Boys as Sex Partners.’’

The advertisement for “613” was a photograph of

group fellatio.

Film “613” itself was included in one of the mail-

ings (G. Ex. 9A). It is a single reel of 8mm. black

and white film with no sound track. It involves two

men and two women who engage in normal inter-

course, anal intercourse, fellatio, cunnilingus and

masturbation. The film focuses on the genitals, con-

tains no plot and ends with one man ejaculating onto

the hand of a woman who is masturbating him.

The remaining counts involve brochures similar to

those advertising “613’’ and “Bedplay.” All devote

one page to homosexual materials and one page to

bondage, masochism and female domination (see, ¢.g.,

G. Exs. 4A, 5A, 6A, 7C, 9D, 9E, 10A, 114). Some of

the brochures also advertise bestiality (see, e.g., G.

Exs. 4A, 5A, 6A, TE, 9E), coercive sex (G. Exs. 7C,

9D), a film entitled “Dirty Old Man” with a photo-

graph of a young teenage girl performing fellatio

(G. Ex. 11A), harnesses (G. Ex. 11B), artificial de-

vices (G, Exs. 7G, 11B), and playing eards (G. Exs.

7D, 10A).

2. Petitioner presented several witnesses who testi-

fied concerning community standards and the appeal

of the materials to the prurient interest of the aver-

age person. Dr. Michael Ward and Reverend Robert

Theodore Mellvenna from the National Sex Forum

testified about the appeal of petitioner’s materials to

the prurient interest (Tr. 304-307, 469). Both stated

that the average person would find these materials

arousing and informational and view them with inter-

est and curiosity. In their opinion, however, the

materials did not appeal to a prurient interest in sex

(Tr. 368-370, 478). They observed further that even

the depictions ef bestiality would be viewed as infor-

mative by the ayerage person (Tr. 374-375). They

stated that the only types of photographs that might

appeal to a prurient interest in sex were those relat-

ing to necrophilia or sadomasochism (Tr. 500-502).

Dr. Ward also testified that he sent people with sexual

problems to adult bookstores and movie theaters,

“[bjecause the viewing of the materials in certain

situations has tremendous value, a therapeutic value”

(Tr. 379).

Both Dr. Ward and Reverend MelIlvenna based

their conclusion that sexually explicit materials do

not appeal to the prurient interest on a survey of the

reactions of people who voluntarily attended courses

in human sexuality at the National Sex Forum. This

survey was taken after the volunteers had viewed films

and pictures portraying explicit sexual conduct (Tr.

342). The district court refused to admit the results

of that survey into evidence. because the people who

attended the National Sex Forum came from the en-

tire United States rather than the Central District

of California and because the survey sampled only

persons who voluntarily attended the Forum, know-

ing that they would view sexually explicit materials

(Tr. 352-360, 402).

The district court admitted into evidence, however,

a more localized survey offered by the defense. Two

witnesses, Dr. Roderick Bell and Gayle Essary, em-

ployees of a public opinion research firm, presented

the results of a survey they had conducted in 1973 in

Los Angeles, Orange County and San Bernardino re-

garding obscenity (Tr. 176-181, 218-219, 226, 268,

271). The survey was conducted primarily in urban

areas and did not include all of the Central District

(Tr. 242-243). The questions in the survey attempted

to discern the degree of public acceptance of explicit

sex in films and books available in adult movie

theaters and book stores (Tr. 519-535; Def. Exs. G,

H, I).

Petitioner also sought to introduce two films, “Deep

Throat” and “The Devil in Miss Jones,” as compari-

son evidence (A. 19; Tr. 170). The defense stated

that they had been commercially successful in the Los

Angeles area and were “just as candid as the material

in this case” (A. 20; Tr. 171). Therefore, it was

argued, the films were relevant to the jury’s deter-

mination of community standards. After viewing a

portion of “Deep Throat,”’ the court refused to admit

either film (A. 20-21, 41-42; Tr. 171-172, 627-628,

693). The court permitted petitioner, however, to

introduce evidence that they had been, respectively,

the first and third largest money-makers among all

EE —

movies shown in Los Angeles in 1973 (A. 21-27;

Tr. 283-306).

3. In rebuttal, the government presented Dr. James

J. Rue, a licensed marriage, family and child coun-

sellor (Tr. 546-547). He testified that the brochures

mailed by petitioner in this case depicted oral sex,

group sex, homosexuality, sex with animals, artificial

devices, anal sex, masturbatory sex and sadomaso-

chism or sadobondage (A. 33; Tr. 572-573). Dr. Rue

stated that he had studied deviant sexual groups and

was of the opinion that these materials appealed ‘‘to

the prurient interest of the average person in the

community as well as deviate [sic] particular groups”

(A. 33-35, 41; Tr. 571-574, 588-589). Dr. Rue further

testified that the publication ‘‘Female Pedophilia” and

the film “Dirty Old Man” would appeal “to a deviate

[sic] group that might be described as a sociopathic

type of person” (A. 39-40; Tr. 580-581).°

B. THE DISTRICT COURT’S INSTRUCTIONS

The trial court instructed the jury that to satisfy

the Roth-Memoirs standard for obscenity, it had to

find that the materials considered as a whole appealed

to the prurient interest in sex, were patently offensive

and were utterly without redeeming social value (A.

* When asked what the effect of viewing matter similar to the

materials in this case would be on the viewer, Dr. Rue also testi-

fied that it could have a “deleterious effect upon the marital rela-

tionship, or in the minds of the young person who may be contem-

plating marriage” (A. 37-39; Tr. 578-580).

55; Tr. 804). In determining appeal to the prurient

interest the jury was told to use a community rather

than a national standard. The court then stated (A.

56-58; Tr. 806-808) :

The first test to be applied, in determining

whether a given picture is obscene, is whether

the predominant theme or purpose of the pic-

ture, when viewed as a whole and not part by

part, and when considered in relation te the

intended and probable recipients, is an appeal

to the prurient interest of the average person

of the community as a whole or the prurient

interest of members of a deviant sexual group

at the time of mailing.

Sa * ” * *

In applying this test, the question involved

is not how the picture now impresses the indi-

vidual juror, but rather, considering the in-

tended 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.

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 insensitive

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.

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.

Petitioner objected to the inclusion of “children”

and “sensitive” peuple in determining “the communi-

ty as a whole” and to the instruction that materials

may be obscene because of their appeal to the prurient

interests of deviant sexual groups. Each of these

objections was overruled (Tr. 630-631, 639-643, 654,

659, 664-669).

Petitioner also objected to a pandering charge (Tr.

644-651). The district court “reviewed all of the ex-

hibits” and “in the light of [their] ap 7 °:61gnd

the totality of the evidence in this case” (Tr. 735)

gave the following instruction on pandering (A. 59-

60; Tr. 810-811):

Having covered the three elements of ob-

scenity, there is one additional matter that you

may consider, and that is the matter of pander-

ing. You must make the decision whether the

materials are obscene under the 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, cireum-

stances of production, sale and

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. Pan-

dering is the busines. of purveying textual

or graphic matter openly advertised to appeal

to erotic interest of the customer.

The question of obscenity is to be answered

by application of the basie test recited earlier,

but if you find this to be a close case under

that test, then you may consider the evidence

of pandering to assist you in your decision.

Such evidence is pertinent to all three elements

of the basic test of obscenity.

The circumstances of presentation and dis-

semination of material are especially relevant to

a determination of whether the social impor-

tance claimed for the material is pretense or

reality, or whether it was the basis upon which

it was traded in the marketplace or a spurious

claim for litigation purposes. Where the dis-

tributors’ sole interest is on the sexually provoc-

ative aspects of the publications, that fact may

be decisive in the determination of obscenity.

In summary, evidence of pandering simply

is useful in applying the basic obscenity test

where an exploitation of interest in titillation

by pornography is shown with respect to the

material lending itself to such exploitation

through pervasive treatment or description of

sexual matters. Such evidence may support the

determination that the material is obscene, even

though, in other context, the material would

escape such condemnation.|["]

C. THE OPINION OF THE COURT OF APPEALS

The court of appeals upheld the instructions.

* During its deliberations, the jury requested that the pandering

charge be reread and the trial judge did so (A. 63-65; Tr. 822-

824).

The court ruled that “[t]he judge’s reference here

to the sensitive and the insensitive was merely an

elaboration on the concept of the total community”

(Pet. App. 5a). With respect to the reference to chil-

dren in the definition of community, the court held

the instruction “did not, as [petitioner] contends, re-

sult in reducing the adult population of the Central

Judicial 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”

(Pet. App. 6a; emphasis by court).°

The court held that, in the light of the materials

themselves and the testimony of the government’s re-

buttal witness, there was sufficient evidence “to estab-

lish that the material was designed and disseminated

to a deviant group” (Pet. App. 7a). Moreover, the

court held, under the rationale of Hamling v. United

States, 418 U.S. 87, 128, that the jury might conclude

that some of the materials in this case could be found

to have a prurient appeal to a deviant sexual group

(Pet. App. Ta-8a).

* The court also stated (Pet. App. 5a-6a) that “the specific in-

clusion of children is unnecessary in the definition of the com-

munity and [that it] prefer[s] that children be excluded from the

court's instruction until the Supreme Court clearly indicates that

inclusion is proper.” Comparing the approval of a similar charge

in Roth v. United States, supra, with the caveat in Gineburg v.

United States, 383 U.S. 463, 465, n. 3, and noting that “com-

munity” has not been defined by this Court except geographically,

the court concluded that “(t]he error, if any, does not require re-

versal” (Pet. App. 6a).

The court also concluded from its review of the

exhibits and the stipulation in this case that, except

for the mailing location, all of the elements that estab-

lished pandering in Ginzburg v. United States, 383

U.S. 463, 470-476, were present here.

The court viewed the two allegedly comparable

films. It held that to be admissible as comparison

evidence they had to bear a reasonable resemblance to

the allegedly obscene materials and had to be sup-

ported by evidence that such material enjoys a reason-

able community acceptance. It concluded that the films

bore a reasonable resemblance, and hence were rele-

vant, only to petitioner’s film “613.” It declined to

determine, however, whether petitioner had shown

sufficient community acceptance of the two films to

warrant their admission, on the ground that reversal

would not affect petitioner’s concurrent sentence ( Pet.

App. 12a-l4a).

SUMMARY OF ARGUMENT

The trial court properly instructed the jury to

consider “the sensitive and the insensitive” in “the

community as a whole,” as well as “men, women and

children, from all walks of life.” When these refer-

ences are viewed, as they must be, in the context of

the charge as a whole, they are simply applications

of the weil-established principle that obscenity vel

non depends on the average conscience of the entire

communit~. That standard is designed to assure that

jurors will apply an objective standard that focuses

neither on the most susceptible nor the most callous

elements in the community as a whole. The mention of

sensitive persons and children in the district court’s

charge closely followed the language of the charge this

Court approved in Roth v. United States, 354 U.S.

476, 490. We agree with the court of appeals that the

better practice for trial judges is not to refer to chil-

dren at all, in order to avoid any possibility that less

carefully framed instructions might cause the jury

to give undue weight to the impact of sexually-oriented

materials on this group. In this case, however, the

court of appeals correctly held that the instructions

as a whole eliminated any risk that this might happen.

The record contained evidence permitting the trial

court to instruct the jury that it could find the mate-

rial obscene if it appealed to the prurient interest in

sex of members of a deviant group. Under Mishkin v.

New York, 383 U.S. 502, 508, the prurient-appeal

requirement of the Roth test is satisfied if the domi-

nant theme of the material taken as a whole appeals

to the prurient interest of a clearly defined deviant

sexual group. The materials here included portions

aimed at persons interested in homosexual or sado-

masochistic materials. These materials were them-

selves the best evidence of what petitioner was offer-

ing, and to whom. Moreover, the government presented

expert testimony to rebut petitioner’s presentation on

Ill

The evidence justified the instruction on pandering.

The advertising materials here were designed to ap-

peal to the erotic interests of the customer. Peti-

tioner’s brochures graphically and textually disclose

no other purpose, and petitioner claims none. Addi-

tional evidence going to petitioner’s editorial goals,

practices, methods of operations and distribution was

not required, because such evidence bears on weight

and persuasiveness, not the threshold requirement for

a pandering instruction under Ginzburg v. Unsted

States, 383 U.S. 463, 467, which the materials here

satisfied.

The district court properly exercised its discretion

in excluding the films “Deep Throat” and “The Devil

in Miss Jones” as comparison evidence. The concur-

rent sentence doctrine, invoked by the court of ap-

peals to limit its consideration of this issue, is inap-

plicable here because petitioner was sentenced to

separate fines on each of the eleven counts on which

he was convicted. Nevertheless, the record shows that

the two films do not meet the prerequisites for com-

parison evidence: (1) that they bear a reasonable

resemblance to the allegedly obscene materials; and

(2) that the evidence shows a reasonable degree of

community acceptance of the proffered comparison

evidence. :

The two films were not comparable to the advertis-

ing materials because they were in a totally different

medium and format and did not have homosexual or

sadomasochistie content. They were also completely

different from petitioner’s film “613.” The comparison

films were feature-length color films with music,

dialogue, a plot, purported humor and structured

cinematic direction, and they were designed for show-

ing in a commercial theater. “61%” is a black and

white 8 mm. film of poor quality with no soundtrack,

dialogue, subtitles, or plot, edited to emphasize only

the sexual episodes. }

Moreover, the evidence did not show significant com-

munity acceptance of the two films in the Central Dis-

trict of California or demonstrate that the average

person in that community would not find the films ob-

scene. Petitioner showed only that the films had en-

joyed substantial commeréial success. He did not ac-

count for the views of the large number of adults in

the seven counties of the district who did not attend

the film, or for the likelihood that many ticket-buyers

in Los Angeles were tourists, conventioneers, or repeat

viewers. Successful showings of films like “Deep

Throat,” and “The Devil in Miss Jones,” which have

been found obscene elsewhere, prove only that: there

is aamarket for pornography, not that it is acceptable

in the Central District of California as a whole. In-

troduction of those films woula have invited the jury

to speculate on the obscenity vel non of the comparison

films themselves, thereby tending to confuse the issues,

and would have made the trial unnecessarily com-

plex. Petitioner had ample opportunity to and did

present other evidence relating to local community

standards; the jury, which is the arbiter on this issue,

was not persuaded by this evidence.

ARGUMENT

I. THE DISTRICT COURT PROPERLY INSTRUCTED THE JURY

TO CONSIDER “THE SENSITIVE AND THE INSENSITIVE” IN

“THE COMMUNITY AS A WHOLE,” AS WELL AS “MEN,

WOMEN AND CHILDREN, FROM ALL WALKS OF LIFE”

Petitioner’s first conviction was vacated and re-

manded for retrial under the Roth-Memoirs standard

(Roth v. United States, 354 U.S. 476; Memoirs v. Mas-

sachusetts, 383 U.S. 413). The trial judge instructed

the jury in terms that this Court had expressly ap-

proved in Roth. 354 U.S. at 489-490. Petitioner con-

tends that in doing so, the trial judge committed re-

versible error (Pet. Br. 14-21). The court of appeals

correctly rejected that contention.

It is familiar doctrine that “a single instruction to a

jury may not be judged in artificial isolation, but must

be viewed in the context of the overall charge.” Cupp

v. Naughten, 414 U.S. 141, 146-147. This is so because

“*fo)]ften isolated statements taken from the charge,

seemingly prejudicial on their face, are not so when

considered in the context of the entire record of the

trial.’” United States v. Park, 421 U.S. 658, 674-675

(emphasis in the original), quoting from United

States v. Birnbaum, 373 F. 2d 250, 257 (C.A. 2), cer-

tiorari denied, 389 U.S. 837. These principles are fully

applicable to instructions in obscenity cases. Hamling

v. United States, 418 U.S. 87, 107-108.

Equally settled is the rule that the obscenity vel non

of particular materials must be determined by their

“impact upon the average person in the community.”

E.g., Roth v. United States, 354 U.S. 476, 490; Ham-

ling v. United States, 418 U.S. 87, 107; Smith v.

United States, 431 U.S. 291, 304. While “expressions

in opinions [of this Court] vacillated somewhat before

coming to the position that a national community

standard was not constitutionally mandated” (Smith

v. United States, supra, 431 U.S. at 300, n. 6),” the con-

cept of “the community as a whole’’ as the guiding

principle has remained constant whatever the geo-

graphic limits of the relevant community. “[This]

Court has never varied from the Roth position”

that the average conscience of the “entire com-

munity” is the touchstone for obscenity, and not the

conscience of “a small, atypical segment of the com-

munity.’’ Smith v. United States, supra, 431 U.S. at

300 n. 6, 305. Thus, in determining obscenity ju-

* Although Roth v. United States, supra, did not define the geo-

graphic boundaries of communities’ standards, the Court applied

aA an din ae ce ee

v. Ohio, 378 U.S. 184, 195; Manual Enterprises v. Day, 370

U.S. 478, 488. The national tienda was abandoned ‘ado len!

community standard was adopted in Miller v. California, 413 U.S.

15, 30-39. One Term later in Hamling v. United States, 418 U.S. 87,

107, this Court held that an instruction employing a national stand-

ard “does not render [the] convictions void as a matter of consti-

tutional law * * *” because such an instruction accomplished the

purpose of assuring “* * * that the material is judged neither on

the basis of each juror’s personal opinion, nor by its effect on a

particularly sensitive or insensitive person or group.” In the pres-

ent cases petitioner was tried under a local community standard,

the community being the Central District of California. .

rors must “consider the entire community and not

simply their own subjective reactions, or the reactions

of a sensitive or of a callous minority.” 431 U.S. at

301; Hamling v. United States, 418 U.S. 87, 107.

The reason for the continuing vitality of this con-

cept is evident. As Judge Learned Hand pointed out,

the laws regulating obscenity essentially reflect a

“compromise between candor and shame at which the

community may have arrived here and now.” United

States v. Kennerley, 209 Fed. 119, 121 (S.D. N.Y.);

see Jacobellis v. Ohio, 378 U.S. 184, 192 (opinion of

Mr. Justice Brennan). Thus, the legal standard for ob-

scenity must necessarily mirror the “average con-

science of the time.” United States v. Kennerley,

supra, 209 Fed. at 121. To assure that community

standards are being applied, jurors must be warned

not to analyze the material in terms of their per-

sonal, subjective opinions or values. See Hamling

v. Untted States, supra, 418 U.S. at 107; United States

v. Cutting, 538 F. 2d 835, 841 (C.A. 9), certiorari

denied, 429 U.S. 1052.”

“[A] juror sitting in [an] obscenity case” must

draw on the “knowledge of the community or vicinage

of isolated passages upon the most susceptible persons” (Roth v.

United States, supra, 354 U.S. at 489), then its determination is

flawed because the jury must base its decision in light of the “com-

munity as a whole.” Roth v. United States, supra, 354 U.S. at 490.

“(T]he recipient group [must] be defined with more specificity

than in terms of sexually immature persons, [and] also avoids

* * * the inadequacy of the most-susceptible-person facet of the

[Regina v.] Hicklin [[1868] L.R. 3 Q. B. 360] test.” Hamling v.

United States, 418 U.S. 87, 129, quoting from Mishkin v. New

York, 383 U.S. 502, 508-509.

from which he comes in deciding what conclusion ‘the

average person, applying contemporary community

standards’ would reach in a given case.” Hamling Vv.

United States, supra, 418 U.S. at 105. The “average

person” has been likened to the “reasonable’’ man used

to measure standards of permissible conduct in other

areas of law. Id. at 104-105; Smith v. United States,

supra, 431 U.S. at 302.

We now show that under these principles the ref-

erences in the trial judge’s instructions to “the sensi-

tive and the insensitive’ and to “men, women and

children” were proper, when viewed in light of both

the “overall charge” (Cupp v. Naughten, supra) and

the “entire record of the trial” (United States v. Park,

supra).

A. SENSITIVE PERSONS

The district court first generally explained to the

jury the three elements of the Roth-Memoirs test

(A. 55-56; Tr. 804-806). It then explained each ele-

** The court stated (ibid.) : “ ‘Obscene’ means something which

deals with sex in a manner such that the predominant appeal is to

prurient interest ; which, when considered as a whole, and not part

by part, appeals to prurient interest in a way or manner substan-

tially beyond the acceptable limits of candor in dealing with mat-

ters relating to sex, as established at the time of its dissemination

by the current standards of the community as a whole, and which

is utterly lacking in redeeming social value or importance.

a = = > | =

“With regard to the three essential elements just mentioned, you

are hereby instructed that in order to find the materials involved

in the within case legally obscene the materials must be found to

violate all three of the stated elements. Thus, if you should find,

for example, that the materials did appeal to the prurient interest

253—888—78——4

ment in detail. In discussing the first element, “appeal

to the prurient interest of the average person of the

community as a whole” (A. 57; Tr. 807), it empha-

sized (tbid.):

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 ef-

fect on a particularly sensitive or insensitive

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. [Emphasis added. ]

This instruction did not direct the jury to foeus on

the most susceptible or on the most callous. As the

court of appeals noted, it “was merely an elaboration

on the concept of the total community. The trial judge

specifically said * * * that the materials were not

to be judged by their effect on a particularly sensi-

tive person” (Pet. App. 5a; emphasis by court). In

Roth, the trial court had charged, in language that

this Court approved (354 U.S. at 490):

The test is not whether it would arouse sex-

ual desires or sexual impure thoughts in those

and did violate contemporary community standards but was not

‘utterly without redeeming social importance’ you must acquit.

Likewise if, for example, the materials did violate contempo-

rary community standards and was ‘utterly without redeeming

social importance’ but did not appeal to the prurient interest, you

must acquit. The point is the materials must violate all three of the

stated three essential elements in order for you to find that it is

legally obscene.”

comprising a particular segment of the com-

munity, the young, the immature or the highly

prudish or would leave another segment, the

scientific or highly educated or the so-called

worldly-wise and sophisticated indifferent and

unmoved * * *,

The district court’s charge in the instant case fairly

restated the substance of that instruction from Roth

(A. 57; Tr. 807).

Petitioner nevertheless contends (Br. 22) that the

instruction is defective because it requires “the jury

to include the sensibilities of ‘everyone’ in the com-

munity in its deliberations before calculating the av-

erage level of sensitivity.” He argues that jurors can-

not know everyone in the community and cannot “in-

telligently * * * apply an equation which requires

them to arrive at the median” (tbid.).

This argument misconceives the jury’s function. It

is not computing ‘‘some abstract formulation” (Miller

v. California, 413 U.S. 15, 30) or resolving a statistical

equation to determine a mathematical average. Its

function is to “take account of all the components that

comprise the community as a whole.” United States

v. Treatman, 524 F. 2d 320, 323 (C.A. 8).

In sum, ‘“‘contemporary community standards must

be applied by juries in accordance with their own

understanding of the tolerance of the average person

in [the] community * * *.” Smith v. United States,

supra, 431 U.S. at 305. The district court’s charge

correctly emphasized that this understanding must be

objective and inclusive of the community as a whole.

B. CHILDREN

In emphasizing to the jury the importance of the

community as a whole, the trial court also said (A.

58; Tr. 808):

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.

Like the reference to “the sensitive and insensitive,”

this single sentence from the instruction was part of

the court’s emphasis on an objective test of average

community attitudes.

It closely followed the charge in Roth (354 U.S. at

490) :

In this case, ladies and gentlemen of the

jury, you and you alone are the exclusive

judges of what the common conscience of the

community is, and in determining that con-

science you are to consider the community as

a whole, young and old, educated and unedu-

cated, the religious and the irreligious—men,

women and children. [Emphasis added. ]

This Court stated in Roth that the trial court had

‘*followed the proper standard” and had ‘“‘used the

proper definition of obscenity” in its instructions. Id.

at 489.

Petitioner contends (Br. 20) that any reference to

children is necessarily an invitation to the jury to look

to the most susceptible members of the community in

determining applicable standards. As the Court’s ap-

proval of the instruction in Roth indicates, how-

ever, that is not so if the instructions as a whole make

it clear that the jury must not assess material by its

effect on the most susceptible.”

The charge here did so. It expressly warned the

jurors not to judge the materials by their effect on the

particularly sensitive (or insensitive) (A. 57; Tr.

807). It stated some nine times that the community

as a whole and the reaction of the average person

is the proper standard (A. 57-59; Tr. 806-809).

Petitioner co: tonds (Br. 18-19) that the court did

not approve this part of the charge in Roth because it

subsequently made the following statement in Ginz-

burg v. United States, 383 U.S. 463, 465, n. 3:

We are not, however, to be understood as ap-

proving all aspects of the trial judge’s exegesis

of Roth, for example his remarks that “the

_ community as a whole is the proper considera-

tion. In this community, our society, we have

children of all ages, psychotics, feeble-minded

and other susceptible elements. Just as they

-eannot set the pace for the average adult

reader’s taste, they cannot be overlooked as part

of the community.” 224 F. Supp. [129, 137

ore Pa.)]. Compare Butler v. Michigan, 352

: 380.

™ The Roth instruction elaborated on the point that neither the

sensitive nor the insensitive are the barometer for

obscenity by emphasizing that the standard is that of the “average

person” in the “community as a whole.” 354 U.S. at 490. To

further illustrate “the community as a whole,” the charge listed

a serite of opposites for the jury, including “the religious and the

irreligious,” so that the jury would not select its “a person”

from a distorted, subjective view of society. The instructions here

followed the same approach (A. 58-60; Tr. 808-810).

As its words make clear, the Court was not ques-

tioning the continued vitality of the Roth charge, but

rather the Ginzburg trial court’s “exegesis” of that

charge.” The trial court’s opinion in Ginzburg em-

phasized that children, psychotics, the feeble minded

and other susceptible elements were part of the com-

munity. In so emphasizing the most “susceptible”

elements, the opinion lacked the balance and neutrality

of the Roth standard, which properly gave equal em-

phasis to contrasting elements of society’s spectrum

in defining “the community as a whole.”

Subsequent to Ginzburg, the Roth charge, in sub-

stantially the same form given in this case, was up-

held. United States v. Manarite, 448 F. 2d 583 (C.A.

2), eertiorari denied, 404 U.S. 947. As the court said

(448 F. 2d at 592):

It makes it clear that the community as a whole

is to be considered in determining what its

standards are. It does not put any undue em-

phasis on the fact that children are part of

The mention of children in the charge here is not

inconsistent with Butler v Michigan, 352 U.S. 380.

That case involved the validity of a Michigan statute

condemning the distribution to anyone of books tend-

* The United States Court of Appeals for the Second Circuit

misinterpreted the Ginzburg footnote in United States v. Mana-

rite, 448 F. 2d 583, certiorari denied, 404 U.S. 947. Manarite at-

tributed the language in the opinion of the district court in

Gineburg to the Reth case, and thereby construed the Gingburg

footnote as questioning the correctness of the Roth definition of

community standards. However, the Gineburg footnote, properly

read, does not question the Roth charge.

ing to corrupt the morals of minors, a law that thus

‘‘reduce[d] the adult population of Michigan to read-

ing only what is fit for children” (id. at 383-384).

The charge in this case, however, did not instruct the

jury to apply such a standard. On the contrary, it

explicitly emphasized the standards of the average

person in the community as a whole.

Although the court of appeals found no reversible

error in the trial court’s reliance on the Roth in-

struction, it stated that “inclusion of children is un-

necessary in the definition of the community” and

that children should be excluded from future instruc-

tions until this Court determines otherwise (Pet. App.

5a-6a). In this case, however, the instructions as a

whole eliminated any possibility that the jury might

give undue weight to the impact of the material upon

children. Although the better practice is for trial

judges not to refer to children at all in defining the

community, to avoid the possibility that less care-

fully framed instructions may mislead the jury (cf.

Ginzburg v. United States, supra, 383 U.S. at. 465,

n. 3), the instructions here, taken as a whole, avoided

that danger and were correct.

Il. THE RECORD CONTAINED EVIDENCE PERMITTING THE

DISTRICT COURT TO INSTRUCT THE JURY THAT IT COULD

FIND THE MATBRIAL OBSCENE IF IT APPEALED 10. THE

PRURIENT INTEREST IN SEX OF MEMBERS OF 4 DEVIANT

SEXUAL GROUP

The district court charged that the jury should

consider (A. 56-57; Tr. 806):

rWynethior the predueninant’ theme or-plaipies

* * * ig an appeal to the prurient interest of

the average person of the community as a whole

or the prurient interest of members of a de-

vivnt sexual group at the time of the mailing.

Petitioner contends (Br. 39-45) that the govern-

ment’s proof did not justify a ‘‘deviant group” in-

struction. This contention is unsound.

In cases since Roth, the Court has ‘‘regarded the

materials as sufficient in themselves for the deter-

mination of the question” of obscenity. Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 56, quoting from

Ginzburg v. United States, 383 U.S. 463, 465. See

also Jenkins v. Georgia, 418 U.S. 153, 159-160; Ham-

ling v. United States, supra, 418 U.S. at 100; Kaplan

v. California, 413 U.S. 115, 120-121. It is also settled

that ‘‘[a] juror is entitled to draw on his own knowl-

edge of the views of the average person in the com-

munity or vicinage from which he comes for making

the required determination * * *.” Hamling v. United

States, supra, 418 U.S. at 104. Materials that are

direeted at the prurient interest of members of

deviant sexual groups, however, are assumed to have

little or no appeal to the average or normal person.

The Court dealt with such materials in Mishkin v.

New York, 383 U.S. 502, 505.* That case involved

fifty books which “* * * portray[ed] sexuality in

**The Court first considered deviant pornography in Manual

Enterprises v. Day, 370 U.S. 478. The materials there were “com-

posed primarily * * * for homosexuals” and “* * * would appeal to

the ‘prurient interest’ of such sexual deviates, but would not have

any imterest for sexually normal individuals * * *.” The Court

had granted review to define “the relevant ‘audience’ in terms of

which * * * ‘prurient interest’ appeal should be judged.” 370 U.S.

at 481-482 (opinion of Mr. Justice Harlan). The court of appeals

many guises. Some depict[ed] relatively normal

heterosexual relations, but more depict{ed] such de-

viations as sado-masochism, fetishism, and homo-

sexuality.” Mishkin argued that these books did not

“satisfy the prurient-appeal requirement because

they [did] not appeal to a prurient interest of the

‘average person’ in sex, that ‘instead of stimulating

the erotic, they disgust and sicken.’ ” Id. at 508. The

Court ‘“‘reject[ed] this argument as being founded on

an unrealistic interpretation of the prurient-appeal

requirement,’’ and held (tbtd.):

Where the material is designed for and pri-

marily disseminated to a clearly defined devi-

ant 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.

Mishkin thus “adjusted the prurient appeal require-

ment to social realities’ (383 U.S. at 508-509);

materials could be obscene if they appealed to the pru-

rient interest of the “average person’’ in the commu-

nity or, alternatively, to members of a “clearly defined

deviant sexuai group.’’ See Smith v. United States,

supra, 431 U.S. at 300 n. 6.

in Manual Enterprises had refused to apply the Roth “average

person” test to materials that catered to homosexuals and instead

“held that the administrative finding their impact on

the ‘average homosexual’ sufficed to the Goverament’s

case as to their obscenity.” /bid. After examining the materials,

this Court found that they were not obscene for the different tea-

The Court further clarified this relevant audience

standard in Hamling v. United States, supra, 418 U.S.

at 127-130. There a government expert witness testi-

fied that the brochure in question “appealed to the

prurient interest of various deviant sexual groups”

(id. at 127). The Court held that such evidence was

admissible under Mishkin, supra, since “each of the

pietures said to appeal to deviant groups did in fact

appear in the brochure * * * [and] it was ‘manifest

that the District Court considered that some of the

portrayals in the Brochure might be found to have a

prurient appeal’ to a deviant group. 481 F. 2d [307,]

321 [C.A. 9].”’ Hamling v. United States, supra, 418

U.S. at 128-129.

Under these criteria, there was ample evidence to

support a “deviant group” instruction. The third page

of each four page brochure was devoted to publica-

tions concerning male homosexual sex. That page

generally was entitled ‘‘Male Or? ~”™ or ‘‘Male Bag,”

making clear the deviant group Aich it was aimed

(see, e.g., G. Exs, 1B, 4A, 8A). Similarly, page four of

each brochure advertised bondage and other sado-

masochistic materials.”*

** Specifically, he testified that the materials appealed to “homo-

sexuals, group sexual activists and persons in masochism, pedo-

philia and zoophilia.” United States v. Hamling, 481 F. 2d 307,

321 (C.A. 9),

“In Ward v. Illinois, 431 U.S. 767, 773, this Court held that

sadomasochistic materials may be constitutionally proseribed

although not “expressly included within the examples of the kinds

of sexually explicit representations” that Miller v. California, 413

U.S. 15, 24, listed as patently offensive.

Besides their blatant appeal to such deviant sex-

uality, the brochures also advertised materials on bes-

tiality (G. Exs. 4A, 5A, 6A, TE, 9E), pedophilia (G.

Exs. 8A, 9B), lesbianism (G. Exs. 1B, 2A, 3A, 7B),

deviee sex (G, Exs. 7G, 11B) and group sex (G. Exs.

1B, 7A, 8A, 9B). Most of the brochures integrated

advertisements of heterosexual sex, which would ap-

peal to the prurient interest of the average person,

with advertisements directed toward one or more

deviant groups.

The fact that the mailings were aimed not only at

that average person but also at specific deviant groups

is further demonstrated by the inclusion in one mail-

ing of a sheet of paper requesting that the recipient

identify the particular types of materials—‘novel-

ties,” ‘‘fetish,” “gay,” or ‘‘hetero”—that he was inter-

ested in receiving in the future. (See note 3, supra,

p. 4.)

“Materials such as these, which by title or content

may fairly be described as sado-masochistic” (Ward

v. Illinois, 431 U.S. 767, 771), come under the Mishkin

test. In Ward, the evidence consisted solely of: the

two publications—‘‘Bizarre World” and *‘ Illustrated

Case Histories, a Study of Sado-Masochism”—

and the testimony of the policeman who purchased

them * * *”. Id. at 770. Similarly, in this case the

materials themselves established a sufficient eviden-

tiary foundation for the instruction,

As the Court noted in another obscenity case, athe

materials themselves * * * are the best evidence of

what they represent.” Paris Adult Theatre I,

supra, 413 U.S. at 56. Obscenity “is not a subject

that lends itself to the traditional use of expert

testimony.” Id. at 56 n. 6. Experts in this field tradi-

tionally differ.“* Confronted with conflicting opinions,

a jury will inevitably turn to the materials themselves.

Although the defense may have a right to attempt

to persuade the jury that certain materials are not

obscene by presenting experts (see Smith v. Califor-

nia, 361 U.S. 147, 164-165, 171 (Harlan, J., and Frank-

17 See United States v. Groner, 479 F. 2d 577, 587 (C.A. 5) (en

bane) (Ainsworth, J., concurring), vacated and remanded, 414

U.S. 969, on remand, 494 F. 2d 499, certiorari denied, 419 U.S. 1010:

“Expert testimony to provide information to the fact finder may

be helpful in obscenity cases but is not indispensable. At times it

may confuse more than help. A swearing contest between oppos-

ing literary or social experts may well turn a case involving crim-

inal sanctions pertaining to obscenity into a farce. This is not to

say that such testimony may not be received by the trier of fact,

but only that it should not be required. The juror, as the so-called

reasonable man or average man, can determine as well as most

_experts whether the involved material is obscene within the defi-

nition of Roth and its progeny. It is no more difficult for the fact

finder to make such a determination than it is to apply such elu-

sive concepts as negligence and proximate cause or in the area of

antitrust such broad phrases as ‘restraint of trade’ and ‘every

contract, combination * * * or conspiracy.’ ”

See United States v. Palladino, 490 F. 2d 499 (C.A. 1), where the

court of appeals left to the district court the decision whether

expert testimony should be required on prurient appeal to deviant

groups.

*® The present case well illustrates the truth of this assertion.

Petitioner introduced two witnesses who testified that nothing,

save perhaps necrophilia and sadomasochism, would appeal to

prurient interest (Tr. 431-432, 501-502). On the other hand, the

government’s rebuttal witness, Dr. Rue, testified that the materi-

eee

furter, J., concurring)), the jury is not bound to

accept the expert’s opinion. This is both a realistic and

sound approach: the jurors, who are members of the

relevant community, have as good sense of the level

of tolerance and acceptance of sexually-explicit mate-

rials in that community as any expert. See United

States v. Groner, 479 F. 2d 577, 585 (C.A. 5) (en

banc), certiorari denied, 419 U.S. 1010. |

In any event, contrary to petitioner’s assertion (Br.

41), the government did present additional evidence

on this issue. Dr. James Rue (see supra, p. 9), an ex-

pert in marriage and family and child counselling,”

testified as to various deviant sexual practices—group

sex, homosexuality, sex with animals, artificial de-

vices, sadomasochism and sadobondage—and concluded

that these materials appealed “to the prurient interest

of * * * deviant particular groups” (A. 33-37, 41;

Tr. 571-578, 588-589). For example, Dr. Rue testified

(A. 37; Tr. 577-578) that:

group sex, which is so predominant in this ma-

terial would again suggest that they are striving

as best they know how to appeal to the unnat-

ural, to the unwholesome side of sex, which

would have particular interest, particularly to

deviate groups, the homosexual one being

obvious.

When asked to whom the film “Dirty Old Man”

(which was advertised with a photograph of a teenage

als appealed to the prurient interest of the average person as well

as to deviate sexual groups (A. 41; Tr. 588-589).

** Petitioner objected to Dr. Rue’s testimony relating to the

appeal of the materials to deviant sexual groups (A. 32; Tr.

552-553). But both Dr. Ward and Rev. McIlvenna, petitioner's

girl committing fellatio) appealed, Dr. Rue responded

(A. 39-40; Tr. 580-581) :

I think to a deviate [sic] group that might be

described as a sociopathic type of person, which

we could call a character disorder.

Dr. Rue also testified that the picture of a female en-

gaged in intercourse with a dog would appeal to the

prurient interest of a sexually deviant group (A. 41;

Tr. 582-583).

Dr. Rue’s testimony constituted additional evidence

that the materials in this case appealed to the prurient

interest of ‘‘clearly defined deviant sexual group[s].”

Mishkin vy. New York, supra, 383 U.S. at 508.”

Ill, TLE EVIDENCE JUSTIFIED THE INSTRUCTION ON

PANDERING

The district court instructed the weit that (A.

59-60; Tr. 810-811):

In making [the determination of obscenity

under the Roth-Memoirs standard] you are not

experts, testified that the materials would not appeal to the pru-

rient interest of homosexuals and other deviant sexuai groups

(Tr. 389-390, 500-504). Therefore, Dr. Rue’s testimony was proper

rebuttal.

In addition, petitioner’s expert witnesses gave evidence rele-

vant to the question of deviant appeal. Reverend McIlvenna and

Dr. Ward testified that sadomasochistic materials and necrophilia

would appeal to a prurient interest in sex (Tr. 431-432). They also

listed as deviant sexual groups zoophiliscs, necrophiliacs, sado-

masochists, and homosexuals, but testified that these materials did

not appeal to the prurient interest of those groups (Tr. 387-388,

499, 501-503). From McIlvenna’s testimony, the jury could have

concluded that parts of the brochures appesled to the prurient

interest of sadomasochists. The jury could also have used peti-

tioner’s composite list of deviant groups in determining those to

whom each photograph might appeal (G. Ex. 11C).

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 produetion, sale

and advertising. The editorial intent is also rele-

vant. What you are determining here is whether

the materials were produced and sold as stock

in trade of the business of pandering. Pander-

ing is the business of purveying textual or

graphic matter openly advertised to appeal to

erotic interest of the customer.

The question of obscenity is to be answered

by application of the basic test recited earlier,

but if you find this to be a close case under that

test, then you may consider the evidence of pan-

dering to assist you in your decision. Such evi-

dence is pertinent to all three elements of the

basic test of obscenity.

Pandering is “the business of purveying textual or

graphic matter openly advertised to appeal to the

erotic interest of their customers.” Ginzburg v. United

States, 383 U.S. 463, 467; Roth v. United States,

supra, 354 U.S. at 495-496 (Chief Justice Warren,

eoneurring). “There is no doubt that as a matter of

First Amendment obscenity law, evidence of pander-

ing to prurient interests in the creation, promotion,

or dissemination of material is relevant in determin-

ing whether the material is obscene.” Splawn y. Cali-

fornia, 431 U.S. 595, 598.° Contrary to petitioner's

** Petitioner’s suggestion (Br. 46-47 n. 7) that Ginzburg was

overruled by Virginia State Board of Pharmacy v. Virginia Citi-

zena Consumer Council, Inc., 425 U.S. 748, was thus rejected in

Splawn v. California, 431 U.S. 595.

contention (Br. 45-47), the evidence in the present

case warranted an instruction on pandering.

The evidence showed, in essence, that petitioner was

in the business of purveying books, magazines and

films, such as the film “613” and the magazine “Bed-

play,” which he openly advertised to appeal to the

particular “erotic interest” of his customers. For ex-

ample, petitioner advertised film “613” in a four page

brochure with a picture showing unnatural sex acts

(G. Exs. 8A, 9B). No textual description of the film

accompanied the photograph. This same brochure con-

tained numerous advertisements for other films and

magazines. Each advertisement contained or sexually

explicit photograph and the title of the film or maga-

zine. The four page brochure concluded with a elip out

order form to be used in purchasing the advertised

materials. In short, petitioner’s “sole emphasis [was]

on the sexually provocative aspects.’’ Memoirs v. Mas-

sachusetts, 383 U.S. 413, 420; Ginzburg v. United

States, supra, 383 U.S. at 470.

Similarly, the magazine “Bedplay” was advertised

in a four page, black and white brochure devoted to

advertising various sex films and magazines with pho-

tographs focusing on genitalia (G. Exs. 1B, 2A, 3A,

7B). The brochure contains a minimum of words, and

those words that do appear were manifestly included

“for titillation, not for saving intellectual content.” ”

*# See, e.g., the advertisement for the film “Mustachioed Magic”

(G. Ex, 1B) : “No Mr, America, but equal in stamina and stamen.

His honey blond sex partner really stirs him up in the process and

we are sure you will be too.”

Ginzburg v. United States, supra, 383 U.S. at 470.

This is graphically shown by the advertisement for

the magazine “Bedplay,’’ which contained on its cover

only an erotic picture and no accompanying text.

The “leer of the sensualist” (Ginzburg, supra, 383

U.S. at 468) also permeates ‘1e remaining brochures,

which depict a variety of pornographic scenes.

In sum, all of the advertised publications and films

(each exorbitantly priced *) were “commercial exploi-

tation of erotica * * *” and the brochures focused

directly on their “prurient appeal.’’ Ginzburg v.

United States, supra, 383 U.S. at 466. Even a cursory

examination of their content refutes petitioner’s claim

that there was a “paucity of evidence” on this issue

(Br. 48). On the contrary, “Bedplay” and “613” were

the “stock in trade” of petitioner’s business of pander-

ing. 383 U.S. at 467.

Moreover, as in Ginzburg v. United States, supra,

383 U.S. at 469-470, “[t]he solicitation was indis-

criminate, not limited to those, such as physicians or

psychiatrists, who might independently diseern the

book’s therapeutic worth.’’ The recipients in this case

included a college student, a retired person, a house-

wife, a retail florist, an Episcopalian minister and a

police lieutenant. At least one mailing was unso-

licited. It contained a piece of paper informing the

*8 The price printed on “Bedplay” is $10.00 although the bro-

chure advertised it for $7.50 (G. Exs. 1B, 7A). The film “613”

was offered for $20.00 in black and white and $35.00 in color (G.

Exs. 8A, 9B).

‘

en eT eT Er ee ——— ee —— ee lee ee eee "= =" _ - * > ee... _—

recipient that his name had been purchased from an-

other mail order house and asked him to indicate

which type of materials (“novelties, fetish, gay or

hetero”’) he was interested in receiving (G. Ex. 11C).

The recipients lived throughout the United States,

and in each mailing petitioner included a return en-

velope with his business address, Petitioner stipulated

that he “voluntarily and intentionally’? mailed these

brochures (A. 13-18; Tr. 134-141).

Petitioner’s contention that this evidence was in-

sufficient to support a pandering charge is based upon

his mistaken belief that elaborate evidence of a de-

fendant’s editorial goals, practices, methods of opera-

tions and distribution is required. Such matters go to

the weight and persuasiveness of the evidence, not to

the threshold showing that justifies a pandering in-

struction. The materials here had no purpose other

than to pander to a prurient interest, and petitioner—

who concedes the “tawdry setting of this case (Br.

53)—makes no suggestion that the‘ material could

have had any other purpose.”

* Neither Manual Enterprises v. Day, 370 U.S. 478, 491, nor

Papish v. Board of Curators, 410 U.S. 667, 670, n. 6, is to the con-

trary. Those cases did not involve advertising brochures contain-

ing hard core pornography and plainly offering more, Compare

United States y. Baranov, 418 F. 2d 1051, 1053 (C.A. 9), and Gine-

burg v. United States, supra, 383 U.S. at 465, in which it was as-

sumed that apart from the context of the advertising, the materials

were not obscene.

Equally inapplicable is United States v. Pellegrino, 467 F. 2d

41 (C.A. 9), which, as the court of appeals noted (Pet. App. 9a-

In any event, the district court’s eharge, which

closely resembled the instruction approved in. Ham-

ling v. United States, supra, 418 U.S. at 130-131, ieft

to the jury the determination whether the advertise-

ment pandered to prurient interests and whether that

fact showed that the materials were obscene. Con-

trary to petitioner’s contention (Br. 50-52), the jury

was invited to consider evidence that was well within

the threshold for a pandering ee rather than

matters not in evidence.

Beeause the brochures here ‘“‘proclaimed its obscen-

ity,” Ginzburg v. United States, supra, 383 US. at 472,.

the two courts below correctly. feund (Tr. 738; Pet.

App. 10a) that the instruction on pandering was.

justified. See United States v. Dachsteiner, 51€ F. 2d

20, 22-23 (C.A. 9); United States v. Wasserman, 504 .

F. 2d 1012, 1016 (C.A. 5); United States v. Ratner,

502 F. 24-1300, 1301-1302 n. 2 (C.A. 5), certiorari

denied, 423 U.S. 898. In light of this evidence, the

closing remarks of government counsel! on this issue

to the jury were not indiscriminate nor did they im-:

properly open the “floodgates” (Br. 49). They simply

underseored what the evidence showed (Tr. 731-734).

108), involved material containing “chaste and wlt-erving ais-

claimers of obscene theme which were not transparently spurious.”

IV. THE DISTRICT COURT PROPERLY EXCLUDED TWO FILMS,

“DEEP THROAT” AND “THE DEVIL IN MISS JONES,” AS

COMPARISON EVIDENCE

Petitioner contends (Br. 33, 38) that the district

court erroneously excluded two films, “Deep Throat”

and “The Devil in Miss Jones,”’ as comparison evi-

dence.”

In arguing that the materials in the present case

are not obscene under community standards (A. 19-

21; Tr. 170-172), petitioner contended that the finan-

cial success of two films, “Deep Throat” and “The

Devil in Miss Jones,” in Los Angeles (A. 21-27; Tr.

283-300) demonstrated that the relevant community

tolerates the kind of material petitioner purveys.

When the district court asked petitioner how these

two films could compare to the still photographs in

the printed materials and the film ‘‘613,” none of

which had a plot or any other characteristics of the

** The court of appeals held that the comparison evidence issue

applied only to Count 9, which charged petitioner with mail-

ing an obscene film, “613.” Under the concurrent sentence doctrine,

however, it declined to decide whether petitioner had shown a de-

gree of community acceptance sufficient to warrant admission of

the films as comparison evidence (Pet. App. 12a-14a). In our brief

in opposition to the petition for a writ of certiorari, we urged

(p. 10) that this ruling was correct. We erred. Petitioner was sen-

tenced to concurrent terms of imprisonment on each of eleven

counts and separate $500 fines on each count. The judgment shows

that the fines are cumulative. Since petitioner has a monetary in-

terest in reversing his conviction on any single count, the concur-

rent sentence doctrin. is inapplicable here. nited States v. Allen,

554 F. 2d 398, 407 n. 15 (C.A. 10), certiorari denied, No, 76-1851,

October 3, 1977. Cf. Jeffers v. United States, No. 75-1805, decided

June 16, 1977, slip op. 18-20. In the interest of judicial economy,

two films, petitioner replied that he intended to offer

‘*the comparison only in terms of candor, not in com-

parison of theatrical beauty or excellence.” The court

replied, “I don’t see that there is a basis for me to

accept your offer as comparable evidence, or to allow

this jury to view those pictures. And I will have to

reject your proposal” (A. 20; Tr. 171-172).™

The court later viewed a portion of “Deep Throat,”

but again ruled that the jury should not view the

films (A. 41-42; Tr. 693). Nevertheless, the court

permitted petitioner to introduce evidence that, based

on gross receipts, “Deep Throat’’ and ‘‘The Devil in

Miss Jones” were respectively the first and third

largest money making films in Los Angeles in 1973

(A. 21-27; Tr. 300-301). In addition, one of peti-

tioner’s expert witnesses, Dr. Ward, testified that

“613” was equal in sexual explicitness to “Deep

Throat” (Tr. 385-386).

The court of appeals viewed both films and com-

pared them with all the other exhibits. It determined

that ‘‘for the films to be admissible as comparable and

probative of community standards the burden is on

the defendant to demonstrate two prerequisites: (1)

a reasonable resemblance between the proffered com-

parables and the allegedly obscene materials, and (2)

however, we submit that instead of remanding the case to the court

of appeals for further consideration of the comparative evidence

** Petitioner offered to take the jury to a movie theatre to view

the two films in their 35 mm. version with soundtrack as shown to

the public. Alternatively, petitioner offered to exhibit 8 mm. silent,

edited versions in the courtroom (A. 31; Tr. 539-542).

a reasonable degree of community acceptance of the

proffered comparables” (Pet. App. 13a). Petitioner

does not challenge this standard, which was first set

forth in United States vy. Jacobs, 433 F. 2d 932, 933

(C.A. 9); accord, United States v. Womack, 509 F. 2d

368, 377-378 (C.A. D.C.), certiorari denied, 422 U.S.

1022.

The court of appeals concluded that none of the

advertising materials was comparable to the two films,

because they (1) were of a different medium and (2)

did not portray the homosexual and sadomasochistic

materials advertised in the brochures. It ruled, how-

ever, that the two films “bore a reasonable resemblance

to the film ‘No. 613,’’’ involved in Count 9, because

all three films presented the same or similar sexual

acts with an equal degree of explicitness (Pet. App.

13a).

We submit that none of the materials met either

element of the test for admissibility of comparable

materials and that the district court did not abuse its

broad discretion to determine “the illuminating rel-

evance of testimony” in an obscenity trial in refusing

to permit the jury to view the films. Hamling v.

United States, supra, 418 U.S. at 124-125. _

A. The advertising brochures on their face were

substantially different in format and expression from

the two comparison films. That all may have involved

explicit depiction of sexual activity is not enough to

establish comparability, for all depictions of “sex and

obscenity are not synonymous” (Roth v. United

States, 354 U.S. 476, 487).

Explicit depiction in one form and context is not

necessarily the same in purpose and effect as such

depiction in another. As the court of appeals noted

(Pet. App. 13a), “‘slight variations in format’ may

produce ‘vastly different consequences in obscenity

determinations.’” United States v. Womack, supra,

509 F. 2d at 378. The comparison films contain music,

dialogue, purported humor, structured cinematic di-

rections, and a plot. They were displayed to the public

on 35 mm. color film in a motion picture theatre and

were intended as entertainment. In contrast, peti-

tioner’s brochures presented black and white photo-

graphs with no story development or text. “Bedplay”’

magazine similarly was nothing more than a collection

of hard-core pornographic pictures.

Save for explicit sexual description, the two films

also lacked a reasonable resemblance to petitioner’s

film “613.” The latter was a black and white 8 mm.

film of poor quality with no soundtrack, dialogue, sub-

titles, or plot, edited to emphasize only sexual epi-

B. In any event, petitioner’s evidence did not show

significant community acceptance of the two films

and thus did not satisfy the second element of the

test for comparison evidence in obscenity cases. Suc-

cess at the box office is not necessarily a measure of

community acceptance. Box office receipts indicate

only the number of people who, out of curiosity or

otherwise, attended the showing of a fili}~they

do not indicate the reactions of the wmovie-

goers as they departed the theatre. Nor does it follow

that because ‘‘ Deep Throat” attracted a large audience

in Los Angeles, the average person in the community

would not find the film obscene.” As the Court noted

in Hamling v. United States, supra, 418 U.S. at 126,

quoting from United States v. Manarite, supra, 448

F. 2d at 583:

Mere availability of similar material by it-

self means nothing more than that other per-

sons are engaged in similar activities.

Moreover, petitioner’s sampling of the Central Dis-

trict of California (where this case was tried) was

incomplete: it did not account for the views of the

large number of adults in the seven counties of the

district who did not attend the film or for the

likelihood that many ticket-buyers were tourists, con-

ventioneers, or repeat viewers from outside the dis-

trict. Petitioner showed only that these films were

financially successful in Los Angeles.

In addition, the substantial receipts the two films

generated may indicate only a lack of effective

prosecution or a decision to employ enforcement re-

** The First Circuit in United States v. One Reel of Film, 481

F. 2d 206, 208, described “Deep Throat” as containing “scenes of

explicit heterosexual] intercourse, including group sex, and em-

phasiz[ing] various scenes of explicit penetration, fellatio, cun-

mr of female masturbation, anal sodomy and seminal ejacu-

ation.”

** The Central District of California contains seven counties:

San Luis Obispo, Ventura, Santa Barbara, San Bernardino, River-

side, Los Angeles and Orange (A. 58; Tr. 808). In 1970, these

counties had a combined population of 6,374,471 persons over 21.

Bureau of the Census, 1970 Census of Population, Characteristics

of Population for California.

sources elsewhere, not community acceptance of their

explicit sexual material. Cf. Smith v. United States,

supra, 431 U.S. at 306. Even “[a] judicial determina-

tion that particular matters are not obscéne does not

necessarily make them relevant to the determination

of the obscenity of other materials, much less mandate

their admission into evidence.” Hamling v. United

States, supre, 418 U.S. at 126-127.

“Deep Throat” has been found to be obscene in

prosecutions in other parts of the country.” Such

determinations, of course, are not dispositive in the

Central District of California, any more than the

opposite determination would be. But they indicate

that the introduction of such materials may invite

*® United States v. Marks, 520 F.2d 913 (C.A. 6) (under Miller),

reversed, Marks v. United States, 430 U.S, 188 (improper standard

applied), convicted on retrial, E.D, Ky., No. 11,057, September 9,

19/7, (under Memoirs), appeal pending, C.A. 6, No. 77-5382;

United States vy. One Reel of Film, 481 F. 2d 206, 208-209 (C.A. 1),

affirming 360 F. Supp. 1067 (D. Mass.) (film obscene under Miller

and Memoirs) ; Sanders v. State, 234 Ga. 586, 216 S.E. 2d 838 (film

obscene, no standard enunciated) ; People v. Mature Enterprises,

' Ine., 352 N.Y.S, 2d 346, 76 Mise. 2d 660 (film obscene under M/ii-

ler) ; Mangum v. Maryland State Board of Censors, 273 Md. 176,

328 A. 2d 283 (film obscene under Miller, probably obscene under

Memoirs); State v. American Theater Corp., 194 Neb, 84, 230

N.W. 2d 209 (film obscene under Miller and Memoirs) ; State ez

rel Cahalan v. Diversified Theatrical Corp., 59 Mich. App. 223,

229 N.W. 2d 389 (film obscene under Miller).

Prosecutions for the showing of “Deep Throat” resulted in ac-

quittals in Los Angeles County, Orange County and San Ber-

nardino County. In obscenity cases “different juries might reach

different conclusions as to the same material.” Smith v. United

States, supra, 431 U.S. at 309; Hamling v. United States, supra,

418 U.S. at 101; Miller vy. California, supra, 413 U.S. at 26;n. 9;

Roth v. United States, supra, 354 U.S. at 492, n. 30. Cf. Dunlop v.

United States, 165 U.S. 486, 499-500.

the jury to speculate on the obscenity vel non of the

comparison films themselves and may thus “tend to

create more. confusion than enlightenment * * *”’

(Hamling v. United States, supra, 418 U.S. at 127)

and “make the trial unmanageably complex and

lengthy.” United States v. Womack, supra, 509 F. 2d

at 378.

The district court has broad discretion in deter-

mining the admissibility of comparison evidence in

obscenity cases. The court did not here abuse its discre-

tion in concluding that requiring the jury to view and

consider the two films, solely because they contained

similar scenes of explicit sex and had enjoyed com-

mercial success, would not have advanced the jury’s

deliberations.

The court did not, however, by excluding the films,

preclude petitioner from introducing appropriate evi-

dence relevant to community standards. See Smith v.

California, supra, 361 U.S. at 164 (Frankfurter, J.,

concurring). Petitioner presented five witnesses who

testified concerning community standards. Two of

those witnesses, Gayle Essary and Roderick Bell, gave

the results of a survey they had taken in certain areas

of the Central District of California on community

acceptance of explicit sexual conduct in movies. Dr.

Ward and Reverend MclIlvenna testified that the ma-

terials at issue would not appeal to the prurient

interest of the average person in the community. Peti-

tioner’s difficulty is that the jury rejected this eyi-

dence, as it had the right to-do.”

*°If the Court agrees with our contention that the two com-

parison films were properly excluded with respect to the obscenity

In sum, this is not an easy case. As the court of

appeals observed, and as we agree, certain aspects

of the district court’s instructions were unnecessary

and it would have been the better practice not to have

included them. Nevertheless, in light of the unmis- .

takable nature of the materials, which plainly are

outside the protections of the First Amendment, the

manner in which they were purveyed, and tbe in-

structions when viewed as a whole, the court of .

appeals correctly concluded that the trial judge’s

charge to the jury did not constitute reversible error.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted. |

Wane H. McCrez, Jr.,

Solicitor General.

BENJAMIN R. CIvILETTI,

Assistant Attorney General.

JEROME M, Fert, |

Parry ELLEN MERKAMP,

Attorneys.

JANUARY 1978

of petitioner’s advertising materials, then the comparison issue

will have been resolved with respect to all counts of the indict-

ment save Count 8, which charged petitioner with mailing “an

advertisement giving information where, how, from whom, and

by what means an obscene film described as No. ‘613’ could be

obtained” (A. 6). Count 9, which charged petitioner with mail-

ing an “obscene movie film identified as No. ‘613’ and obscene il}us-

(A. 7) should not be reversed, because one of the obscene bro-.

chures, “Canned Heat” (G. Ex. 9E), was also determined to be

obscene by the jury in Counts 4, 5, and 6 (see G. Exs. 4A, 5A,:

and 6A).

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.