# Appendix — Bagnell v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1047

## Text

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
WALTER "FRENCHY" BAGNELL,

Defendant-Appellant.

No. 81-5384
June 28, 1982.
Appeal from the United States District
Court for the Southern District of Florida.
Before VANCE, HATCHETT and ANDERSON

Circuit Judges.

VANCE, Circuit Judge:

Appellant, Walter Bagnell, challenges
his conviction under the federal obscenity
statutes. After trial by jury, Bagnell was

convicted under two counts charging use of

A-1

a common carrier for the interstate transpor-
tation of obscence material, in violation
of 18 U.S.C. Sec. 1462,2/ and two counts
charging interstate transportation or obscene
material for purposes of sale and distribut-

ion, in violation of 18 U.S.C. Sec. 1465.2/
1/

18 U.S.C. Sec. 1462 provides in pertinent
part: .

Whoever brings into the United States,
or any place subject to the jurisdiction there-
of, or knowingly uses any express company
or other common carrier, for carriage in
interstate or foreign commerce
(a) any obscene, lewd, lascivious, or filthy
book, pamphlet, picture, motion-picture film,
paper, letter, writing, print, or other matter
of indecent character; or

Whoever knowingly takes from such
express company or other common carrier
any matter or thing the carriage of which
is herein made unlawful--

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.

2/

18 U.S.C. Sec. 1465 provides in pertinent
part:

(Continued)

A-2

W

On appeal, Bagnell asserts numerous errors,
none of which is meritorious. We therefore

affirm *

In early 1977 the Federal Bureau of
Investigation (FBI) began a nationwide in-
vestigation into violations of the federal

obscenity laws, focusing upon shipments of

2/ (Continued)

Whoever knowingly transports in inter-
state of foreign commerce for the purpose
of sale or distribution any obscene, lewd,
lascivious, or filthy book, pamphlet, picture,
film, paper, letter, writing, print, silhouet-
te, drawing, figure, image, cast, phonogragh
recording electrical transcription or other
article capable of producing sound or any
other matter of indecent or immoral charac-
ter, shall be fined not more than $5,000
or imprisoned not more than five years, or
both.

3/

21 Bagnell was fined $5,000 and sentenced
to prison for eighteen months under the first
count of the indictment. He was placed on
probation for a total of five years on the
remaining three counts, subject to the condi-
tion that he did not distribute sexually ex-
plicit material to Florida during his proba-
ionary period.

A-3

obscence materials to the Miami, Florida
area. As part of the investigation, FBI Agent
Patrick J. Livingston formed a corporation,
Gold Coast Specialties, from which he pur-
ported to operate a mail order pornography
business. Livingston traveled throughout
the country to arrange for shipments of por-
nographic materials to the Miami based Gold
Coast Specialties from various producers and
distributors. On September 7, 1977 Livingston
was introduced to Bagnell in Los Angeles,
California by Paul Howard, an owner of sev-
eral adult book stores and massage parlors
in Tampa, Florida who had previously pur-
chased pornography from Bagnell. During
this meeting, Livingston and Bagnell discus-
sed the pornography industry, their con-
nections with it across the country, and
the attendant difficulties with lav en-
forcement efforts and debt collection.
Specifically, Bagnell mentioned his efforts
A-4

to avoid detection for shipping pornography
to Tulsa, Oklahoma and his problems with
a customer in Baltimore, Maryland who owed
him $34,000.

Bagnell and Livingston met again
the next day. At that time Livingston pro-
posed to purchase some of Bagnell's movies,
and Bagnell readily agreed to the sale of
fifty movies. The only thing about which
there was any debate was the price, which
they quickly set at $5.50 for each film.
Livingston received the films in Miami four
days later, 4/ and paid Bagnell by check
when the two met at Paul Howard's home
in Tampa on September 15, 1977.

Bagnell and Livingston met once more,
on October 11 in Chicago, Illinois. Livings-

ton's check for the fifty movies had bounced,

4/ The September 12, 1977 shipment con-
tained ten copies each of five different
movies from the "Sexual World" series. Only
two of the movies were the subject of the
criminal charges eventually brought against
Bagnell. P

A-

so Livingston repaid Bagnell in cash. At the
same time Livingston arranged to purchase
more movies from Bagnell for $5.00 each.
On December 14, 1977 Livingston received
in Miami a shipment of four movies from
Bagnell. Unlike the first shipment, which
consisted of several heterosexual movies,
this second shipment contained two copies
each of two different films portraying
homosexual acts.2/

Bagnell had no further contacts
with Livingston, but he was not charged
with any crime for over a year. On February
11, 1980, however, a federal grand jury
for the southern district of Florida indicted

Bagnell and forty-four other persons for

conspiracy to violate the federal obscenity

5/

7 The titles of these two movies were
Jeff and Frank and Dale and Ed, both from
the "Intimate Moments" series. Both movies
were introduced into evidence and formed the
basis for two of the four counts of his indict-
ment.

A-6

Statutes and numerous parallel substantive
violations. This original indictment was
eventully superseded and the grand jury
issued sixteen separate indictments. One
of these superseding indictments charged
Bagnell individually with four offenses
arising out of the two movie shipments
to Miami. A jury subsequently convicted
Bagnell and this appeal followed.
I. VENUE

Bagnell first contends that venue
did not properly lie in the southern district
of Florida because the government's decision
to prosecute him in that district constituted
improper forum shopping. Specifically,
he contends that the government chose
to have him ship materials to the southern
district of Florida because it believed
that a jury applying the community standards
of that district would probably find that
the materials were obscene. He asserts

A-7

that such forum shopping by the government
violates his right to due process. Assuming
arguendo that Bagnell's characterization of the
government's conduct as forum shopping is
accurate, his argument evinces a misunder-
standing of the principles of venue and due
process and therefore must fail.

The right of criminal defendants
to be tried in the state and judicial district
in which the alleged crime occurred is guar-
anteed by article III of and the sixth amend-
ment to the United State Constitution as well
as Rule 18 of the Federal Rules of Criminal

Procedure. United States v. Davis, 666 F.2d

195, 198-99 (5th Cir. 1982). It is well estab-
lished that the use of common carriers to ship
obscene materials and the interstate shipment
of such materials are continuing offenses that
occur in every judicial district which the

material touches. See Reed Enterprises v. Clark,

278 F.Supp.372, 380 (D.D.C.1967) (three judge
A-8

court), aff'd mem., 390 U.S. 457, 88 S.Ct.
1196, 20 L.Ed.2d 28 (1968). Consequently,

there is no constitutional impediment to the
government's power to prosecute pornography
dealers in any district into which the material

is sent. Id. Cf. Hamling v. United States,

418 U.S. 87, 106, 94 S.Ct. 2887, 2901, 41 L.Ed.
2d 590 (1974) ("distributors of allegedly ob-
scene materials may be subjected to varying
community standards in the various federal
judicial districts into which they transmit the
materials"). The venue question, then, becomes
one of legislative intent. Travis v. United
States, 364 U.S. 631, 636-37, 81 S.Ct.358, 361-
362, 5 L.Ed.2d 340 (1961). Specifically, did

Congress intend to allow the prosecution of
pornography distributors in the district to
which they transmit their products? This ques-
tion must be answered with a resounding yes.

Section 1462 proscribes the use of
common carriers to distribute obscene material,

A-9

while section 1465 prohibits the transportation
of such materials through interstate commerce.
By their very terms, these statutes describe
offenses within the venue provisions of 18
U.S.C. Sec. 3237(a), which declares that any
offense “involving the use of the mails, or
transportation in interstate commerce“ is a
continuing offense that may be prosecuted in

any district in which the crime took place. S/

67

18 U.S.C. Sec. 3237 (a) provides:

(a) Except as otherwise expressly pro-
vided by enactment of Congress, any offense
against the United States begun in one dis-
trict and completed in another, or committed
in more than one district, may be inquired
of and prosecuted in any district in which
such offense was begun, continued, or com-
pleted.

Any offense involving the use of the

mails, or transportation in interstate or for-
eign commerce, is a continuing offense and,
except as otherwise expressly provided by
enactment of Congress, may be inquired of
and prosecuted in any district from, through,
or into which such commerce or mail matter
moves.
See generally United States _v. Bullock, 451
F.2d 4, 889 (5th Cir. 1971) (discussing
proper venue for offense involving illegal
interstate transportation of stolen postal mon-
ey orders).

A-10

United States v. Peranio, 645 F.2d 548, 551

(6th Cir. 1981). Venue was therefore proper
in the southern district of Florida because it
is the district in which the materials were re-

ceived. See United States v. Walker, 559 F.2d

365, 372 (5th Cir. 1977); United States v.

Slepicoff, 524 F.2d 1244, 1249 (5th Cir. 1975),
cert denied, 425 U.S. 998, 96 S.Ct. 2215, 48
L.Ed.2d 824 (1976); United States v. McManus,

535 F 2d 460, 463-64 (8th Cir. 1976), cert
denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d

769 (1977) 2/
1

Any doubts that may have existed
about Congress! intent to treat federal obscen-
ity violations as continuing offenses were
put to rest with the 1958 amendments to 18
U.S.C. Sec. 1461, 1462. Congress amended
these statutes for the express purpose of over-
ruling a tenth circuit decision holding that
section 1461 was not a continuing offense,
see United States v. Ross, 205 F.2d 619 (10th
Cir. 1953), and thereby ensured that venue
would lie "not only at the place at which
the objectionable matter is mailed, but also
at the place of address or delivery, or in
any judicial district through which such mat-

(Continued)

A-11

Bagnell argues that the Supreme Court's
disposition of Blucher v. United States, 439
U.S. 1061, 99 S.Ct. 823, 59, L.Ed.2d 27 (1979),

compels a contrary conclusion. He contends that
Blucher stands for the proposition that the due
process clause precludes forum shopping of any
sort in obscenity cases, thus overriding general
venue principles which would otherwise allow
his trial to be held in the southern district
of Florida. We disagree. In Blucher the defend-
ant was convicted of obscenity charges after
egregious forum shopping by the local prosec-
utors. The tenth circuit affirmed the convic-
tion, stating that venue in pornography cases

was "subject to the creative zeal of federal

7/ (Continued) .

ter is carried." H.R. Rep.No. 1614, 85th Cong.,
2d Sess. 2 (1958). See also Conf.Rep.No. 2624,
85th Cong., 2d Sess. 3-4 (1958); United States
v. McManus, 535 F.2d 460, 463-62 (8th Cir.

scussing impact of 1958 amendments on
venue in obscenity prosecutions), cert. denied,
1 ,

A-12

enforcement officer." United States v. Blucher,

581 F.2d 244, 245-46 (10th Cir. 1978). While
a petition for certiorari on the forum shopping
point was pending before the Supreme Court, the
Solicitor General moved to dismiss the indictment
as contrary to an internal Justice Department
policy regarding venue in obscenity prosecu-
tions. The Supreme Court subsequently vacated
the conviction without comment and ordered the

indictment dismissed. Blucher v. United States,

439 U.S. at 1061, 99 S.Ct. at 823.

It is clear that the Supreme Court's
disposition of Blucher was not a decision on
the merits of the venue claim, but was merely
a response to the Solicitor General's motion.
See Thompson v. United States, 444 U.S. 248,
249-50, 100 S.Ct. 512, 513-514, 62 L.Ed.2d 457

(1980) (per curiam) (citing Blucher as an ex-
ample where the Court has “responded to re-
quests by the Government. by granting
certiorari and vacating the judgments"). Con-

A-13

sequently, the summary action of the Supreme
Court in Blucher has no precedential value for
the specific venue issue presented in this case.
Indeed, Bagnell's due process argument has

been foreclosed by the decision in Hamling v.

United States, 418 U.S. at 87, 94 S.Ct. at 2887.

In Hamling the Supreme Court specifically held
that it was constitutionally permissible to sub-
ject defendants in obscenity prosecutions to
varying community standards of the various
judicial districts into which they transmit
obscene material. Id. at 106, 94 S.Ct. at 2901.
We agree with the tenth circuit that at a mini-
mum, prosecutors may elect to bring obscenity
charges against a defendant in either the dis-
trict of dispatch or the district of receipt with-
out running afoul of the due process clause.

See United States v Blucher, 581 F.2d at 245-

46; accord, United States v. Peraino, 645 F.2d

at 551. Indeed, prosecution in the district of
receipt is eminently reasonable in veiw of the

A-14

fact that it is the recipient community that
suffers the deleterious effects of pornography
distribution. United States v. McManus, 535

F.2d at 464.87

It is equally unavailing for Bagnell
to assert that his prosecution violated an en-
forceable justice Department policy regarding
venue. The former fifth circuit has repeatedly
held that justice Department policies such as
the one allegedly involved in this case are
merely matters relating to the internal opera-

tions of the justice Department and create no

87

We reserve judgment, however, on the
case in which an obscenity prosecution is
brought in a judicial district through which
allegedly pornographic material passes en
route to another destination. Although prose-
cution in this transit district would seem
to be allowed by the liberal venue provision
of section 3237, that case would be more
problematic in light of both the legistative
history of the 1958 amendments to the federal
obscenity statutes and the principles under-
lying the due process clause. See United
tates v. nus, 535 F.2d 460, 463-64 (8th
Cir. 1976). cert. denied, 429 U.S. 1052, 97
S.Ct. 766, 50 L.Ed.2d 769 (1977); Unite
mates. L 243 F.Supp. 160, 176 (N.D.
lowa 1965), rev'd on other grounds, 389 F.2d

200 (8th Cir. 1968). 4 46

enforceable right on the part of a criminal de-
fendant. See, eg-, United States . McInnis,
601 F.2d 1319, 1323 (5th Cir. 1979), cert.
denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.
2d 237 (1980); United States v. Nelligan, 573

F.2d 251, 255 (Sth Cir. 1978); Fry v. United

States, 569 F.2d 303, 304 (Sth Cir. 1978). See
also United States v. Caceres, 440 U.S. 741,

99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). It is thus

solely within the province of the Justice De-
partment to determine whether an internal
policy against forum shopping in obscenity
cases should bar prosecution in a given case.

| Bagnell also contends that the dis-
trict court abused its discretion in denying
his motion for a change of venue to the central
district of California pursuant to Rule 21(b)
of the Federal Rules of Criminal Procedure. We
disagree. A criminal defendant has no right
to be tried in the place of his domicile, United
States v. Walker, 559 F.2d at 372, and the de-

A-16

fendant's concerns about the expense and in-
convenience of being tried away from home are
ordinarily of little relevance to a motion for
a change of venue. United States v. Sanchez,
508 F.2d 388, 393-95 (Sth Cir.) cert. denied,
423 U.S. 827, 96 S.Ct. 45, 46 L.Ed.2d 44

(1975). Additionally, we note that in light of
the "contemporary community standards require-
ment of Miller v. California, 413 U.S. 15, 93
8. Ct. 2607, 37 L.Ed.2d 419 (1973) it is logical

to try a defendant lin a federal obscenity
case] in the district to which he allegedly

mailed obscene matertals.“ United States v.

Slepicoff, 524 F.2d at 1249. Indeed, it is the
district of receipt that suffers the brunt of the
harms associated with the distribution of por-
nography and is most in need of protecting it-
self by the application of its community stand-

ards to the materials in question. See United

States v. Luros, 243 F.Supp. 160, 176 (N.D.

lowa 1965), rev'd on other grounds, 389 F.2d
A-17

200 (8th Cir. 1968); H. R. Rep. No. 1614, 85th
Cong., 2d Sess. 6 (1958); 104 Cong.Rec. 8991-
92 (May 19, 1958) (remarks of Reps. Keating
and Reuss). Courts should thus exercise re-
straint in granting Rule 21(b) motions in ob-

scenity prosecutions. See United States v.

McManus, 535 F.2d at 464. At an irreducible
minimun, obscenity defendants must demonstrate
substantial unfair prejudice flowing from a
denial of such a motion before we will overturn

the district court's action. See United States

v. Walker, 559 F.2d at 372. There was no such
showing here, so we will not disturb the dis-
trict court's ruling.
II. EXPERT TESTIMONY

At trial, the district court allowed Arthur
R. Green, pastor of the Christ Metropolitan
Community Chruch in Miami, to appear as an
expert witness for the prosecution. Pastor Green
is homosexual and his congregation is predo-
minantly homosexual as well. He testified to

A-18

the Miami homosexual community's standards
regarding pornography and he opined that the
average ‘person in that community would find
that the two homosexual films in question in
this case appealed to the prurient interest.
Bagnell contends that while expert testimony
regarding the homosexual community standards
about pornography was required in this case,
Pastor Green was not qualified to give such
expert testimony. He argues further that he
was prejudiced because the improper testimony
was imbued with "an aura of special reliab-
ility."

Initially, we reject the contention
that expert testimony was necessary in this
case. It is clear that hard core pornography
can, and does, speak for itself, United States
v. Wild, 422 F.2d 34, 36 (2d Cir. 1969), cert.
denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d

152 (1971), and that a jury generally can de-
termine whether allegedly pornographic material

A-19

is obscene simply by viewing it. Pinkus v.
United States, 436 U.S. 293, 302, 98 S.Ct. 1808,
1814, 56 LEd. 2d 293 (1978); Ginzburg v. United
States, 383 U.S. 463, 465, 86 S.Ct. 942, 944
16 L.Ed2d 31 (1966). Cf. Jacobellis v. Ohio,
378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12
L.Ed.2d 793 (1964) (Stewart, J., concurring)

("I know it when I see it ..."). Consequently,
there is no constitutional need for expert“
testimony on behalf of the prosecution, or for
any other ancillary evidence of obscenity, once
the allegedly obscene material itself is placed
in evidence." Kaplan v. California, 413 U.S.
115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492
(1973) (citing Paris Adult Theatre I v. Slaton,
413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37
L.Ed.2d 446 (1973). The Supreme Court has re-

cognized, however, that there may be circum-
stances in which expert testimony is necessary
in obscenity prosecutions. The Court specifical-
ly reserved judgment "on the extreme case ...

A-20

where contested materials are directed at such
a birarre deviant group that the experience
of the trier of fact would be plainly inadequate
to judge whether the material appeals to the

prurient interest." Paris Adult Theatre I v.

Slaton, 413 U.S. at 56 n.6, 93 S.Ct. at 2634
n.6. This exception to the general rule regard-
ing expert testimony in obscenity prosecutions
does not apply to this case. We are unwilling
to say that expert testimony is constitutionally
mandated in all obscenity prosecutions in-
volving materials depicting homosexual acts.
Such materials are not so far removed from
the realm of recognizable sexuality as to
render jury evaluations inappropriate" and re-

quire expert testimony. United States v. Thom-

as, 613 F.2d 787, 794 (10th Cir.), cert.
denied, 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d
114 (1980).

While expert testimony in ob-
scenity cases is not required, it clearly is

A-21

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

at 108, 94 S. Ct. at 2902; United States v.

1

Slepicoff, 524 F.2d at 1247-48; United States
v. One Reel of Film, 481 F.2d 206, 209 n.3

(Ist Cir .1973). The district court in obscenity
cases has "wide discretion in its determination
to admit and exclude evidence, and this is
particulary true in the case of expert test-

mony." Hamling X. United States, 418 U.S. at

108, 94 S.Ct. at 2902. We will not overturn the
district court's decision to admit expert test-
imony unless the district court abused is dis-

cretion. Bauman v. Centex Corp., 611 F.2d

1115, 1120 (5th Cir. 1980).

In this case, the district court
might very well have excluded Pastor Green's
testimony, as well as the testimony of the other
expert witnesses. See United States v. Groner,

479 F.2d 577, 587 (5th Cir.) (en banc) (Ains-

worth, J., concurring) (expert testimony in ob-
scenity cases can be helpful, but it may

A-22

i
*

confuse rather than aid the trier of fact),
vacated, 414 U.S. 969, 94 S.Ct. 278, 38 L.
Ed.2d 218 (1973) (remanded for reconsideration
in light of Miller v. California, 413 U.S. at

15, 93 S.Ct. at 2607), adhered to, 494 F.2d
499 (5th Cir.), cert. denied, 419 U.S. 1010,

95 S. Ct. 331, 42 L.Ed.2d 285 (1974). Nonethe-
less, we cannot say that the district court
abused its discretion in allowing Pastor Green
to testify. As adviser and counselor to a pre-
dominantly homosexual congregation in Miami,
Pastor Green was intimately familiar with the
social and sexual mores of at least a large
part of Miami's homosexual community. Con-
sequently, his testimony probably provided the
jury with a better understanding of the obs-
cenity issue in this case than it otherwise
would have had. That he moved to Miami eight
months after the films arrived there does not
make his testimony inadmissible. The temporal
relationship between Pastor Green's arrival in

A-23

Miami and the shipment of the films is not so
attenuated as to render his testimony irrele-
vant, so this fact goes to the weight and not

the admissibility of the evidence. See Barnes

v. General Motors Corp., 547 F.2d 275, 278

(5th Cir. 1977). Finally, Pastor Green's test-
imony did not prejudice Bagnell. Bagnell's
counsel adequately cross-examined Pastor Green
and revealed the shortcomings of his testimony.
Additionally, Pastor Green's testimony was
buttressed by another expert witness who was,
if anything, an even more credible witness.
III. ENTRAPMENT

At trial, uncontroverted evidence showed
that FBI Agent Livingston first contacted
Bagnell in Los Angeles and that Livingston took
the lead in proposing to purchase some of
Bagnell's movies. The evidence also showed
that Bagnell readily agreed to sell the movies
and that the only discussion regarding the sale
concerned the price and merchandising of the

A-24

movies in question. Finally, while the evidence
showed that Bagnell had previously shipped
Fei movies throughout the country, there
was no evidence to show that he had ever dealt
with purchasers in the southern district of
Florida or that he had ever had any contacts
at all with that cistrict. At the close of the
case, the district court did not deliver an
entrapment instruction and the case went to
the jury. During its deliberations, the jury
sent a note to the judge asking if it could
consider the entrapment defense that Bagnell's
attorney had argued in his opening statement.
The judge replied that entrapment was not in
issue and that they could not consider it.
Bagnell argues that the judge's decision
was erroneous. He contends that the govern-
ment's case presented enough evidence of en-
trapment to warrant an instruction to the jury.
Bagnell argues that the judge's error was not
harmless and therefore warrants reversal. He

A-25

asserts that evidence of his predisposition to
ship the movies elsewhere does not show that
he was predisposed to ship to Miami and that
the jury could infer from the evidence that he
had been improperly induced to send the
materials to the southern district of Florida.
He argues that the jury's note further demon-
strated the existence of sufficient evidence to
support an entrapment instruction. We reject

this argument.

Entrapment occurs when the government
induces the commission of a crime by one not

predisposed to commit it. United States ».

Humphrey, 670 F.2d 153, 154 [1982] (11th Cir.
1982); United States v. Webster, 649 F.2d 346,

348 (5th Cir. 1981) (en banc). Entrapment is
an affirmative defense that focuses on the defen-
dant's pre-disposition to commit the crime in

question. United States v. Webster, 649 F.2d at

348. As entrapment is an affirmative defense,
the defendant must come forward with evidence

“that the government's conduct created a sub-
A-26

stantial risk that the offense would be committed
by a person other than one ready to commit it.“
United States v. Dean, 666 F.2d 174, 180 (Stn
Cir. 1982); Pierce v. United States, 414 F.2d
163, 168 (Sth Cir.), cert. denied, 396 U.S. 960,
90 S.Ct. 435, 24 L.Ed.2d 425 (1969). It is clear

that the government's evidence can provide this
requisite evidentiary base for an entrapment

instruction, Sears v. United States, 343 F.2d

139, 143 (5th Cir. 1965), and that failure to
give an instruction when the defendant has met
his burden is reversible error. United States
v. Timberlake, 559 F.2d 1375, 1379 (5th Cir.
1977).

An entrapment instruction would
not have been proper in this case. That the
government first suggested or solicited the ill-
egal shipments does not constritute entrapment.
The defendant must show "mild persuasion or
coercion” on the part of the government before
he is entitled to an entrapment instruction.

A-27

United States v. Humphrey, 670 F.2d at 156

(quoting United States v. Hill, 626 F.2d 1301,

1304 (Sth Cir. 1980). Bagnell has failed to
meet this burden. The only showing made here
is one of initial government contact and
Bagnell's enthusiastic willingness to sell the
movies in question.
IV. FIRST AMENDMENT

It is undisputed that the first
amendment does not protect obscene material
from regulation or suppression by the govern-
ment. See Roth v. United States, 354 U.S. 476,
483-85, 77 S.Ct. 1304, 1308-1309, 1 L.Ed.2d
1498 (1957); Red Bluff Drive-In, Inc. v. Vance,

648 F.2d 1020, 1026 (5th Cir. 1981), cert.
denied, ---U.S.---, 102 S.Ct. 1264, 71 L.Ed.2d
453 (1982). Although this basic proposition has
been long established, it was not until the

landmark decision in Miller v. California, 413

U.S. at 15, 93 S.Ct. at 2607, that any firm
standards were developed to guid the determin-

A-28

ation of obscenity, In Miller the Supreme Court

established a three-part obscenity test:
(a) whether “the average person, apply-
ing contemporary community standards"
would find that the work, taken as a
whole, appeals to the prurient interest
«++; (b) whether the work depicts or
describes, in a patently offensive way,
sexual conduct specifically defined by
the applicable state law; and (c)
whether the work, taken as a whole,
lacks serious literary, artistic, political
or scientific value.

Id. at 24, 93 S.Ct. at 2614 (citations omit-

ted.2/ In applying the first two parts of the
9/

Miller was a case involving a state
obsenity prosecution. The Miller test, however,
applies to federal obscenity prosecutions as
well. See ted. St v „ 413 U.S.
139. 145, e 80 t. 4, . 7 L.Ed.2d
513 (1973) (prosecution under 18 U.S.C. Sec.
(1462). Cf. Marks v. United States,430 U.S.
188, 194-96, 97 S.Ct. 550, 592-955, 51 L. Ed. 2d
260 (1977) (Miller standards not to be applied

retroactively to prosecution under 18 U.S.C.
Sec. 1465).

A-29

Miller test the trier of fact is required to
utilize contemporary community standards to
determine whether the allegedly pornographic
material appeals to the prurient interest and
whether it depicts sexual activity in a patenty
offensive manner. In applying the third part
of the Miller test to determine whether the
materials possess serious valve, however, the
trier of fact is not supposed to rely upon con-
temporary community standards when evaluating
the evidence. Smith v. United States, 431 U.S.
291, 300-01 97 S.Ct. 1756, 1763-1764, 52 L.Ed.2d

324 (1977). Miller delineates a constitutional

test, however, and its application is not left
to the unbridled discretion of the trier of fact.
The appellate court is obligated to make an
independent review of the material in question
and an independent evaluation of the material

in light of the Miller criteria. Miller v.

California, 413 U.S. at 25, 93 S.Ct. at 2615;
Penthouse International, Ltd. v. McAuliffe, 610
A-30

r

F. 2d 1353, 1363 (5th Cir.), cert. denied, 447
U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131

(1980). With these principles in mind, we turn
to Bagnell's specific constitutional objections.

Bagnell first argues that the district
court failed to instruct the jury on the proper
Miller test. Specifically, he complains of a jury
instruction that told the jury to evaluate the
films according to the community standards of
“the southern district of Florida, particulary
Dade County.“ Bagnell contends that the
Supreme Court has never sanctioned the use
of a community standards instruction based on
a geographic area smaller than a judicial dis-
trict and that such an instruction is too rest-
rictive and subject to prosecutorial abuse. He
claims specific prejudice from the instruction
because it excluded Broward County, ° which
contains Fort Lauderdale, from the relevant
community for purposes of the obscenity ana-
lysis.

A-31

The former fifth circuit has re-

jected this argument. In United States v.

Groner, 479 F.2d at 577, the former fifth cir-
cuit held that in “obscenity cases under fed-
eral law ‘the community’ should logically
enbrace that area from which the jury is drawn
and selected." Id. at 583. Although Groner was
decided before the decision in Miller, nothing
in Miller or any subsequent case affects the
vitality of the Groner holding regarding the
relevant community for purposes of obscenity

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

at 87, 94 S.Ct. at 2887, the Supreme Court
stated that the Miller test envisioned no pre-
cise geographical area in determining the re-
levant community standards. The Court stated,
however, that the purpose of the Miller test
was "to permit a juror sitting in obscenity
cases to draw on knowledge of the community
++» from which he comes in deciding what con-
clusion ‘the average person, applying contem-

A-32

porary community standards' would reach in
a given case." Id. at 105, 94 S.Ct. at 2901.
Groner comports with this mandate. It ailows
the jury to apply first-hand knowledge to the
Miller test, thus obviating the need for expert
testimony, while providing federal courts with
flexibility to adopt efficient local procedures

for jury selection. See also United States v.

Thomas, 613 F.2d at 792. The jury in this case

was drawn from Dade County alone. A7 Accord

ingly, the jury instruction based upon the

10 /

Se The jury System Improvements Acts
of 1978, 28 U.S.C. Sec. 1861-1876, declares
that juries be "selected at random from a
fair cross section of the community in the
district or division wherein the court con-
venes." 18 U.S.C. Sec. 1861. Furthermore,
division“ is defined to include "in judicial
districts where there are no statutory divi-
sions, such counties, parishes, or similar
political subdivisions surrounding the places
where court is held as the district court plan
shall determine." 28 U.S.C. Sec. 1869(e).

The southern distvict of Florida con-
tains no statutory divisions, but instead is
required by statute to hold court in five
cities, including Miami. 28 U.S.C. Sec. 89.
The jury selection plan for the southern dis-

(Continued)
A-33

community standards of Dade County complies

with our requirement of symmetry between the

*
jury pool and the relevant community. A/

10 / (Continued)

trict of Florida provides that jurors in trials
held at Miami shall be drawn from Dade and
Collier Counties. In this case, the judge
determined that Collier County residents should
be exclued from the venire. Although this
decision may indicate technical noncompliance
with the 1978 Act, the defendant failed to
challenge this decision, and thereby waived
any statutory objections to the jury selection.
See 28 U.S.C. Sec. 1867(a). We note that even
if the judge had fully complied with the
requirements of the 1978 Act, no juror would
have been drawn from Broward County. Con-
sequently, Bagnell's contention that he was
prejudiced because the judge excluded Broward
County from the relevant community is com-
pletely inapposite in light of Groner's focus
upon the jury pool for purposes of determining
the relevant community.

11/
i The State of Florida has d ermined
that the relevant community for purposes
of a state obscenity prosecution is the local
county. Johnson v. State, 351 So.2d 10, 11
(Fla.1977). onsequently, any argument
by Bagnell as to lack of notice concerning
the proper community for first amendment
purposes is unava..ing.

The net result of the holdings in
Groner and in the instant case is as follow:
the trial court in a federal obscenity prose-

cution does not commit error if it defines
(Continued)

A-34

Bagnell also argues that the four
films forming the basis for his conviction are
constitutionally protected. Essentially, he urges
that the films are not obscene because none
of them “deals with minors, with animals, with
cruelty, masochism, sadism, excretion, de-
fecation, or anything else that might disqualify
[them] for First Amendment protection." Miller
cannot be so circumscribed, however, as to
apply only to this rather restrictive litany of
possible sexual practices. The Supreme Court
determined that a case-by-case evaluation of
allegedly obscene material was appropriate
precisely because such a list is impossible to
draft. Additionally, the various degrees of

tolerance thoughout the country would make

11/ (Continued)

the relevant community as the area from
which the jury is to be drawn according
to the local jury selection plan, or the area
in which the ofense was committed if, as
in this case, the jury is actually drawn
from the area without objection by the
defendant.

A-35

eee

such a list unresponsive to local needs. Miller
v. California, 413 U.S. at 27-28, 30-32, 93 S.
Ct. at 2616-2617, 2618-2619.

Applying Miller to the four films,
we have no doubt whatever that they are obs-
cene and may form the basis for Bagnell's
conviction. Each fiim is devoted exclusively
to the explicit depiction of various sexual
practices. None of the films has a plot or any
dialogue,nothing, in fact, save continual inter-
course. In the first film a man and a woman
engage in oral, anal, and genital copulation,
while the second film depicts two women and
a man engaging in oral and genital copulation
as well as the women engaging in lesbian acts.
Both the third and forth films depict nothing
but homosexual acts involving various types
of oral copulation, anal copulation, and mutual
masturbation. There can be no doubt that the
average person applying contemporary com-
munity standards would find that each of the

A-36

films appeals to the prurient interest and de-
picts sexual conduct in a patently offensive
manner. “Similarly, each film is devoid of any
value, let alone any serious value, aside from
its intended commercial purpose to cater to a
prurient interest in sex. Each movie is a non-
stop assault on the sensibilities of the viewer
and manages only to debase sexual activity
with its numbing explicitness.

We conclude that each film sat-
isfies each part of the Miller test and accord-
ingly falls outside the ambit of the first
amendment. We have, in addition, determined
that the district court did not commit rever-
sible error in any of its rulings in this

case. 27 There being no constitutional impedi-

12/

Bagnell raises three other contentions
on appeal which can be dismissed in short
order. He contends that the twenty-six month
delay between the occurrence of the crimes
charged and his indictment was prejudicial
and requires reversal. For pre-indictment
delay to warrant reversal, however, the
defendant must show that the delay was
motivated by an _ improper prosecutorial

(Continued)
A-37

ment to Bagnell's conviction or any trial error,
we affirm his conviction under all four counts

of the iridictment.

AFFIRMED

12/ (Continued)

purpose and resulted in prejudice to the
defendant. United States v. Durnin, 632 F.2d
1297, 1299 (5th Cir. 1980). Bagnell has failed
to show an improper motive on the part of
the government. Indeed, delay so as to allow
a national investigation to proceed unhin-
dered is manifestly proper. Bagnell's con-
clusory assertions of prejudice are also
unconvincing.

Bagnell also argues that the district

court improperly restricted voir dire. Cur-
iously, he correctly concedes that this issue
is completely foreclosed by Smith v. United
States, 431 U.S. 291, 308, t.
1767, 52 L.Ed.2d 324 (1977). Finally, Bagnell
contends that a mistrial should have been
declared when the prosecutor asked a witness
whether Bagnell had offered to sell “animal
films." He asserts that there was no basis
for the question and that its implications
prejudiced him. While we agree that the
prosecutor acted improperly in this instance,
the question does not require reversal. Any
prejudice that might have resulted was dis-
pelled when the witness testified that Bagnell
did not sell “animal films." Additionally,
the district court promptly gave an adequate
curative instruction.

A-38

lane

IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Filed
September 21, 1982

No. 81-5384

UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
WALTER "FRENCHY" BAGNELL,

Defendant-Appellant.

APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

ON PETITION FOR REHEARING AND SUGGESTION
FOR REHEARING EN BANC (Opinion June 28,

Before VANCE, HATCHETT and ANDERSON,
Circuit Judges. PER CURIAM:
1.

The Petition for Rehearing is DENIED and
no member of this panel nor Judge in regular
active service on the Court having requested
that the Court be polled on rehearing en banc
(Rule 35, Federal Rules of Appellate Proce-
dure; Eleventh Circuit Rule 26). the sugges-
tion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ ROBERT S. VANCE
United States Circuit Judge

2.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0045%3A2. Public record. Not legal advice.