Petition for Writ of Certiorari — Guglielmi v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

LOUIS GUGLIELMI,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway

New York, NY 10007

(212) 513-7676

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 902138

(617) 495-4617

Attorneys for Petitioner

Louis Guglielmi

Victoria B. Eiger

Of Counsel

Lbs

Le eo

QUESTIONS PRESENTED FOR REVIEW

Does a work which is alleged to be

obscene appeal to the prurient interest

in sex as this Court has defined that

phrase if it has no tendency to arouse

sexually but has "the capacity to attract

individuals eager for a forbidden look"?

Is a sentence of 25 years imprisonment

imposed on a 55 year old first offender

for the crime of interstate shipment of

obscene films which involved no children,

which were not displayed to unconsenting

adults, and which were shipped interstate

pursuant to repeated orders placed by the

FBI so disproportionate to the crime that

it violates the Eighth Amendment's ban on

cruel and unusual punishment?

Did Congress intend and, if so, does the

Constitution permit, imposition of

consecutive sentences based on several

interstate shipments of obscene films

where the several shipments were made

pursuant to multiple order for the films

placed by the FBI?

- TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..-.ccccceol

TABLE OF CONTENTS. eeeeoeieesteerst;e8eteeeee#s#se#seee#e = %

TABLE OF AUTHORITIES. eoeeseee#ses5oe#e#e#8e?#8#¢*# ee eseee#es? Vi

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED. .ccccccccccsccccscce eX

OPINIONS BELOW. ccoccccccccscccccccvcesceekXiili

JURISDICTION OF THE COURT. cecscecccccceeskXiil

STATEMENT OF THE CASE. ccccccccce cocccoeol

REASONS FOR GRANTING THE WRIT

POINT I THE DECISION OF THE

COURT OF APPEALS --

WHICH DEFINES "APPEAL

TO THE PRURIENT

INTEREST" AS "THE

CAPACITY TO ATTRACT

INDIVIDUALS EAGER FOR

A FORBIDDEN LOOK" --

REPRESENTS A SERIOUS

DEPARTURE FROM THIS

COURT'S RULINGS WHICH

CAREFULLY DEFINE THAT

WHICH IS OBSCENE.....++..6

POINT II THE RULING OF THE

FOURTH CIRCUIT --

THAT ONLY SENTENCES

AS OR MORE SEVERE

THAN LIFE

IMPRISONMENT WITHOUT

POSSIBILITY OF PAROLE

ARE SUBJECT TO

EE en ee

PROPORTIONALITY

REVIEW UNDER SOLEM vy.

HELM --

COURTS OF APPEAL..

POINT III

IT DID,

CONSTITUTION DOES

PERMIT

BASED ON SEVERAL

IS CONTRARY

TO THE EXPRESS

COMMAND OF SOLEM AND

IN CONFLICT WITH THE

RULINGS OF THE OTHER

CONGRESS DID NOT

INTEND AND,

THE

EVEN IF

NOT

IMPOSITION OF

CONSECUTIVE SENTENCES

INTERSTATE SHIPMENTS

OF OBSC

WHERE THE SEVERAL

ENE FILMS

SHIPMENTS WERE MADE

PURSUANT TO REPEATED

ORDERS FOR THE FILMS

PLACED BY THE FBI.....

CONCLUSION... ccccvccces

APPENDIX

Opinion of the United States

Court of Appeals

Fourth Circuit (M

Order denying petition for

for the

ay 21, 1987)...

rehearing and suggestion for

renearing en banc

(July l,

1987)

kes c ee eae

~ 26

o«3l

- eA-l1

» -A-24

Order of the Supreme Court

extending the time for filing

the petition for a writ of

certiorari (August 6, 1987)....+.-..A-26

TABLE OF AUTHORITIES

CASES

Albernaz v. United States,

450: UeSe 333 Ch. fh PeerrerTT TTT Te eoeeeee 27

Bell v. United States,

349 Uese 81 PEP aS eee reece e es ooo es eeeweseas

Brockett v. Spokane Arcades, Inc.,

472 UeSe 491 (i9E DS) et cocseves eoseeeveveee8 8

Chandler v. Jones, 813 F.2d 773

(6th Cur by) Pree r eT ee eT TCC Ce

Foots v. Louisiana,

Tes ewe SLe tCoee Cif. 1966) iscscsas éwRe

Hampton v. United States,

425 U.S. 484 (1976) cccceeccevees 6ésaeee 30

Hutto v. Davis, 454 U.S. 370 (1982).....16

Manual Enterprise, Inc. v. Day,

370 U eS e 478 CEPR al be eee ee eeesess's eeenee#e¢ )

Miller v. California, -

413 UseSe 15 Ob ees PPT eoeeeoeveee ee 6,8

Mishkin v. United States, 383 U.S. 502

CZ9GGS)occecovessveseconsers e*eeee#eee#ee?#efee#8+tjee%8e#e## 9

Missouri v. Hunter,

459 Vous 359 PEPE Sleesecess e*eeee#ee#eeeses ee hi

— —

O'Neil v. Vermont, 144 U.S. 323 (1892)..29

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

iiss PeererTs eee ewe ee ee ~rrer TT Terre 8,9,11

Rummell v. Estelle, 445 U.S. 263

(2980) secavs EPO PTT TTT Te Te TET eT ec s 16

Solem v. Helm, 463 U.S. 277 (1983)...... passim

Tuitt v. Fair, Slip op. 86-1808

Se Ghee SR Be SEOT) co cccccscessetse 18

United States v. Darby, 744 F.2d 1508

eee Ghee FOC ECR KORO hoe eee eeeeee 19

United States v. Eggleton,

Teo Camel Ste COE GCEEsé EPOB)} cccccvccene 18

United States v. Hack, 782 F.2d 862

[Leen GhEk EEOC ese evess (buen eee neueenn 18

United States v. Holland, 810 F.2d 1215

i ae. MT terse ore heb pee 4 0666 688 ee 0 19

United States v. Mitchell,

7 eee Bee © Pee GEE. LOBE) cc cccceves 18

United States v. Ortiz, 742 F.2d 712

(20 Cifeste

cert. denied, 105 S.Ct. 573 (1984).ccc-x 18

United States v. Rosenberg,

S06 F.2G 1169 (3d Cir. 1986). .cccccsecs 18

United States v. Russell,

pe 8 Se so Bes. oe > ee 30

- vii -

United States v. Sato,

814 F.2d 449 (7th Cir. 1987). cece 18

United States v. Terrovona,

785 F.2d 767 (9th Cir. 1986). -ccreevee 18

Whalen v. United States,

445 U.S. 684 (1980)..... eo ccccccscoscce 27

Whitmore v. Maggio, 742 F.2d 230

(Sth Cir. 1984). cccvees Cocceressenne -18

STATUES

28 C.F.Re §2.620 (1985) ccc ecvevccvens 00 220,22

1S UcSeCe SST lecccvvvcvcescssccveccsevers 2

18 U.S.Ceo $146 2c cesccccscesccveves ceeecee 2

18 U.S.Co §l14O5 ccc ccvevesee co eereecccos o2

18 UseSeCe §4205(D) (1) ccccsccccccrcsccese 22

Mele Gen. Stat. §14-190.1

(1985 Cum. Supp. )ecvccccescctecccesecs oco2l

OTHER AUTHORITIES

Consecutive Sentences in Single

Prosecutions: Judicial Multiplication

of Statutory Penalties,

67 Yale L.J. 916 (1958)...... co cccrcces 29

- vili -

OOOO Leal

Rossi, Waite, Bose & Berke,

The Seriousness of Crimes: Normative

Structure and Individual Differences,

S39 AM@s SOC. ROVe 224 (197E) eo ccvccccceseedl

Sourcebook of Criminal Justice

Statistics 1984,

U.S. Department of JuStice.....eeeeeeee2d3

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

U.S. Const. amend. V:

»»enor shall any person be subject for

the same offense to be twice put in

jeopardy of life or limb; ...nor be

deprived of life, liberty, or property,

without due process of law....

U.S. Const. amend. VIII:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted.

18 U.S.C. §1465:

Whoever knowingly transports in

interstate or foreign commerce

for the purpose of sale or

distribution any obscene, lewd,

lascivious, or filthy book,

pamphlet, picture, film, paper,

letter, writing, print,

Silhouette, drawing, figure,

image, cast, phonograph

recording, electrical

transcription or other article

capable of producing sound or

any other matter of indecent or

immoral character, shall be

fined not more than $5,000 or

imprisoned not more than five

years, or both.

The transportation as aforesaid

of two or more copies of any

publication or two or more of

any article of the character

described above, or a combined

total of five such publications

and articles, shall create a

presumption that such

publications or articles are

intended for sale or

distribution, but such

presumption shall be

rebuttable.

When any person is convicted of

a violation of this Act, the

court in its judgment of

conviction may, in addition to

the penalty prescribed, order

the confiscation and disposal

of such items described herein

which were found in the

possession or under the

immediate control of such

person at the time of his

arrest.

18 U.S.C. §1462:

Whoever brings into the United

States, or any place subject to

the jurisdiction thereof, or

“knowingly uses any express

company or other common

carrier, for carriage in

interstate or foreign

commerce --

(a) any obscene, lewd,

J lascivious, or filthy book,

pamphlet, picture, motion-

picture film, paper, letter,

writing, print, or other matter

of indecent character; or

(b) any obscene, lewd,

lascivious, or filthy

phonograph recording,

electrical transcription, or

other article or thing capable

of producing sound; or

(c) any drug, medicine,

article, or thing designed,

adapted, or intended for

producing abortion, or for any

indecent or immoral use; or any

written or printed card,

letter, circular, book,

pamphlet, advertisement, or

notice of any kind giving

information, directly or

indirectly, where, how, or of

whom, or by what means any of

such mentioned articles,

matters, or thing. may be

obtained or made; 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.

OPINION BELOW

The opinion of the United States Court of

Appeals for the Fourth Circuit is reported at

819 F.2d 451, and is set forth in the appendix

at A-l.

JURISDICTION OF THE COURT

The judgment of the — of Appeals for

the Fourth Circuit was entered on May 21,

1987. (A-1l1) The order denying the petition

for rehearing and suggestion for rehearing en

bane was entered on July 1l, 1987. (A-24-25)

By order dated August 6, 1987, the Honorable

William H. Rehnquist extended the time for

filing the petition for a writ of certiorari

to and including September 29, 1987. (A-26)

The jurisdiction of this Court to review

the judgment of the Fourth Circuit is invoked

under 28 U.S.C. §1254(1).

- xlli -

STATEMENT OF THE CASE

Petitioner is presently serving a 25-year

sentence following conviction on obscenity

charges. As the proprietor of a Baltimore,

Maryland business which distributed films,

magazines, books and sex aids to adult

bookstores, Petitioner sold and shipped

merchandise, including three short films

depicting acts of bestiality, to the New

Freedom Adult Bookstore in Charlotte, North

Carolina. After arresting the bookstore's

proprietor, the FBI learned that the films had

been purchased from Petitioner. Then, posing

undercover as the owners of another North

Carolina adult bookstore, FBI agents began

placing orders with Petitioner for sexually-

oriented merchandise, including bestiality

films. Pursuant to those FBI orders, on three

occasions Petitioner shipped bestiality films

to the FBI in North Carolina. Petitioner was

later indicted in the Western District of

North Carolina.

The ll-count indictment charged five

paired counts of interstate transportation of

obscene films (18 U.S.C. §1465) and use of a

common carrier to transport those films (18

U.S.C. §1462), and one count of conspiracy to

commit those crimes (18 U.S.C. §371). The

conspiracy count and four of the substantive

counts were based on the shipment of the three

films to the New Freedom bookstore.

The remaining six counts were based on

the three shipments made pursuant to the

orders placed by the undercover FBI agents. A

total of eight films, all depicting various

acts of bestiality, were involved.

At his jury trial, Petitioner defended on

the ground that the films were not obscene.

His defense was that the films neither

appealed to the prurient interest of the

average, adult member of the general community

nor to the prurient interest of the deviant

group of zoophiliacs. The prosecutor argued

that the films could be obscene even if they

did not appeal to the prurient interest of

anyone; in the government's view it was

sufficient if they were "an appeal to" or were

"directed toward" the prurient interest. The

trial court, throughout trial and in its

instructions to the jury, adopted the

government's position.

Petitioner was convicted on all counts.

The pivtieies judge paired the five sets of

interstate shipment/common carrier counts and

sentenced Guglielmi to six five-year terms,

five of which were to run consecutively. In

other words, he imposed a total sentence of 25

years incarceration. He also imposed a

$35,000 fine.

On appeal to the Fourth Circuit,

Petitioner contended that the prosecutor had

failed to prove -- and the jury instructions

had failed to require that the jury find --

that the films "appeal to the prurient

interest" as that phrase had been defined by

this Court. He also argued that the sentence

imposed was so disproportionate to the crime

-- especially in light of the government's

role in placing repeated orders for the films

and thus inducing Petitioner to make multiple

shipments which served as the basis for

consecutive sentences -- that it constituted

cruel and unusual punishment proscribed by the

Eighth Amendment. ¢

The-Court of Appeals affirmed the

conviction and held that the films had

properly been found obscene. That Court held

that a work appeals to the prurient interest

even if it does not have the capacity to

arouse sexually as long as it has "the

Capacity to attract individuals eager for a

forbidden look."

The Court of Appeals also rejected

Petitioner's Constitutional challenge to his

sentence. It noted that it was concerned

about the length of the sentence imposed.

(A-22) However, it held that Eighth Amendment

proportionality analysis applies only to

sentences aS or more severe than life

imprisonment without possibility of parole,

and that Petitioner's 25-year sentence was

thus immune from Constitutional challenge. It

did not hold that the sentence ws proportional

to Petitioner's crimes.

The Court denied a petition for rehearing

Or rehearing en banc.

REASONS FOR GRANTING THE WRIT

POINT I

THE DECISION OF THE COURT OF

APPEALS -- WHICH DEFINES

"APPEAL YO THE PRURIENT

INTEREST" AS "THE CAPACITY TO

ATTRACT INDIVI.UALS EAGER FOR A

FORBIDDEN LOOK" -=- REPRESENTS A

SERIOUS DEPARTURE FROM THIS

COURT'S RULINGS WHICH CAREFULLY

DEFINE THAT WHICH IS OBSCENE

The decision of the Court of Appeals, by

redefining "appeal to the prurient interest,”

substantially expands the scope of that which

is obscene and thus unprotected by the First

Amendment. The sole contested substantive

issue in this case was whether the eight films

were obscene under the first prong of the

tripartite test of Miller v. California, 413

U.S. 15 (1973). Under that test, material is

not obscene unless "taken as a whole, [it]

appeals to the prurient interest [in sex]."

Id. at 24. Based on this Court's obscenity

decisions, the defense took the position that,

—_———“€

to appeal to the prurient interest, material

must evoke or be capable of evoking a sexual

response in the average member of the

community or, if directed toward a deviant

group, in the average member of the deviant

group. The prosecution urged that the

material need not be capable of evoking a

sexual response on the part of anyone and that

it need not "appeal to" anyone's prurient

interest. According to the prosecution all

that is necessary is that the material be "an

appeal to," that is, be "directed toward" a ‘

prurient interest in sex. The trial court

adopted the prosecution's position. On

appeal, Petitioner urged this was error.

The Court of Appeals for the Fourth

Circuit rejected the defense position, but

went even farther than the prosecution had

urged. It held that material may be obscene

even though it incites no sexual response in

anyone. The Court of Appeals held that

material appeals to the prurient interest

within the meaning of Miller if it has "the

capacity to attract individuals eager for a

forbidden look." (A-14)

In so ruling, the Fourth Circuit

disregarded the relevant case law of this

Court and adopted a wholly novel and

unprecedented definition of appeal to the

prurient interest, a definition flagrantly at

odds with that adopted by this Court.

The Court of Appeals was not writing on a

clean eiate. This Court has defined the

concept of "appeal to the prurient interest."

It is material which arouses a sexual

response, and does so excessively, morbidly,

or shamefully. See Brockett v. Spokane

Arcades, Inc.» 472 U.S. 491 (1985); Roth v.

BEST AVAILABLE COPY J

United States, 354 U.S. 476, 487 n.20 (1957);

Manual Enterprises, Inc. v. Day, 370 U.S. 478,

482-87 (1962).

The question of whose prurient interest

in sex must be considered in determining

whether a particular work is obscene has also

been addressed by this Court. In Roth v.

United States, supra, 354 U.S. at 490, the

Court approved a jury instruction which

explained:

The test in each case is the

effect of the book, picture or

publication considered as a

whole, not upon any particular

class, but upon all those whom

it is likely to reach. In

other words, you determine its

impact upon the average person

in the community. (emphasis

added )

This Court has carved out only one

exception to the “average person" rule. That

is the rule of Mishkin v. New York, 383 U.S.

502 (1966), a case involving depictions of

various "deviant" sexual practices. The

sy DN Boe eytteNt

defendant had argued that the materials did

not appeal to a prurient interest of the

average person in sex; instead of stimulating

the erotic, they would disgust and sicken.

This Court rejected the argument:

Where the material is designed

for and primarily disseminated

to a clearly defined deviant

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.

Id. at 508.

The decision of the Court of Appeals

rejects this whole body of case law. Instead,

based solely on a Comment to Tenative Draft

No. 6 of the Model Penal Code (1957), it

defines appeal to the prurient interest as a

reference "to qualities of the material

itself: the capacity to attract individuals

eager for a forbidden look." (A-14) Reliance

on this language was completely unjustified]

and serves to distort the entire body of

obscenity jurisprudence carefully developed by

this Court.

The laws against obscenity exist, at

least in part, in recognition of the fact that

obscene materials have the capacity to do

something: to arouse or excite or stimulate

sexually in an unhealthy, morbid, or excessive

way. A central justification for obscenity

law is its perceived or assumed effect on

human beings and on their behavior.

Accordingly, it is reasonable to suggest that

materials which are so repulsive that they do

not excite, arouse, or stimulate sexually are

outside the scope of obscenity regulation.

Nor does that mean that the more repulsive a

lAlthough the Roth Court did quote approvingly

from Tentative Draft No. 6, it did not quote,

or endorse, this language relied on by the

Court of Appeals. See Roth v. United States,

354 U.S. at 487 n.20.

work is, the less likely it is to be obscene.

This is because the law recognizes and takes

into account the existence of deviant sexual

groups whose members are sexually aroused by

materials which the general, "normal" adult

heterosexual population would find bizarre or

repulsive -- not erotically exciting -- and

the law recognizes that such materials may be

obscene based on their effect -- their ability

to arouse -- members of the deviant group.

Thus, contrary to the Fourth Circuit's view,

acceptance of this Court's decisions and the

defendant's thesis based on them does not mean

that "the more repulsive, the less obscene."

The test adopted by the Court of Appeals

to avoid the perceived, but largely non-

existent, problem is one which was never urged

by the government and never before adopted by

this or any other court.2 Furthermore, if, as

2If it is to become the law, principles of due

(footnote continued)

the Court of Appeals apparently believed, the

Miller test is inadequate to deal with the

kind of vulgar material at issue in this case,

then it is important for this Court to address

the problem.

The Court of Appeals for the Fourth

Circuit, perhaps unwittingly, has made major

changes in a very sensitive area of First

Amendment jurisprudence. Because its decision

redefines an essential element of obscenity,_

and conflicts with the definition adopted by

this Court, the petition for a writ of

certiorari should be granted.

(footnote continued from previous page)

process and fair notice require that it be

adopted prospectively, and not applied

retroactively -- and without notice or

opportunity to be heard -- against the

Petitioner. Application of the new rule to

Petitioner's case is particularly unfair

because part of his defense at trial rested on

his contention that these bizarre films

appealed to the sense of curiosity, and not to

"the prurient interest." To redefine prurient

interest to mean something akin to curiosity

-- eagerness for a forbidden look -- is thus

grossly unfair.

POINT I1

THE RULING OF THE FOURTH

CIRCUIT -- THAT ONLY SENTENCES

AS OR MORE SEVERE THAN LIFE

IMPRISONMENT WITHOUT

POSSIBILITY OF PAROLE ARE

SUBJECT TO PROPORTIONALITY

REVIEW UNDER SOLEM v. HELM --

IS CONTRARY TO THE EXPRESS

COMMAND OF SOLEM AND IN

CONFLICT WITH THE RULINGS OF

THE OTHER COURTS OF APPEAL

Noting that it was "concerned" about the

sentence imposed, the Court of Appeals for the

Fourth Circuit nevertheless ruled that only

sentences aS or more severe than life

imprisonment without possibility of parole are

Subject to proportionality review under Solem

v. Helm, 463 U.S. 277 (1983). (A-22-23) That

decision is directly contrary to this Court's

mandate in Solem. In that case this Court

squarely held that the Eighth Amendment

prohibits prison sentences that are

disproportionate to the crime committed.

Specifically, the Solem Court held that a life

:

’,

Ss

ro]

sentence without possibility of parole imposed

under a state recidivist statute for a seventh

non-violent felony offended the Eighth

Amendment.

The Solem Court noted that reviewing

courts should grant substantial deference to

the broad authority that legislatures

necessarily possess in determining the types

and limits of punishments for crimes and to

the discretion that trial courts possess in

sentencing convicted criminals. Accordingly,

it stated that "a reviewing court rarely will

be required to engage in extended analysis to

determine that a sentence is not

constitutionally disproportionate." Id. at

290 n.l16. But the Court also made clear that

"no penalty is per se constitutional." Id. at

290 (emphasis added).

rT ~ Pe dN OPEN Ty nerartette men .

Solem neither states nor suggests that

the proportionality requirement of the Eighth

Amendment applies only to prison terms of life

without parole. On the contrary, the decision

made clear that it applies to all

punishments.

The Solem Court also established the

analytical framework for review of sentences

claimed to be disproportionate and identified

three objective factors to be considered by

3Nor does this Court's failure to overrule

Rummell v. Estelle, 445 U.S. 263 (1980), or

Hutto v. Davis, 454 U.S. 370 (1982) (per

curiam), Support the Fourth Circuit's ruling.

The Solem Court said that Hutto v. Davis makes

clear that Rummell should not be read to

foreclose proportionality review of sentences

of imprisonment.

Rummel did reject a

proportionality challenge to a

particular sentence. But since

the Rummel Court -- like the

dissent today -- offered no

standards for determining when

an Eighth Amendment violation

has occurred, it is controlling

only ina similar factual

setting.

Solem v. Helm, supra, 463 U.S. at 303 n.32.

the reviewing court. First, the gravity of

the offense and the harshness of the penalty

must be examined. Second, a comparison of the

sentences imposed on other criminals in the

same jurisdiction may be undertaken. "If more

serious crimes are subject to the same

penalty, or to less serious penalties, that is

some indication that the punishment at issue

may be excessive." Id. at 291. Finally the

court may compare the sentences imposed for

commission of the same crime in other

jurisdictions. The framework is a general

one, applicable on its face to all sentences

which might be imposed.

Every Court of Appeals other than the

Court of Appeals for the Fourth Circuit has

accepted -- and applied -- the plain teaching

of Solem v. Helm. While those courts have

frequently upheld lengthy sentences against

Eighth Amendment disproportionality

challenges, and many have done so without

extended analysis, all have recognized that

term-of-years sentences must be proportionate

to the crimes for which they are imposed and

have applied the criteria set forth in Solem

for testing proportionality. See, e.g. Tuitt

v. Fair, Slip. op. 86-1808 (lst Cir., June 4,

1987); United States v. Ortiz, 742 F.2d 712

(2d Cir.), cert. denied, 105 S.Ct. 573 (1984);

United States v. Rosenberg, 806 F.2d 1169 (3d

Cir. 1986); Whitmore v. Maggio, 742 F.2d 230

(5th Cir. 1984); Foots v. Louisiana, 793 F.2d

610 (5th Cir. 1986); Chandler v. Jones, 813 F.

773 (6th Cir. 1987); United States v.Mitchell,

788 F.2d 1232 (7th Cir. 1986); United States

ve Sato, 814 F.2d 449 (7th Cir. 1987) (fine);

United States v. Eggleton, 799 F.2d 378 (8th

Cir. 1986); United States v. Terrovona, 785

F.2d 767 (9th Cir. 1986); United States v.

Hack, 782 F.2d 862 (10th Cir. 1986); United

— =

States v. Darby, 744 F.2d 1508 (11th Cir.

1984); cf£. United States v. Holland, 810 F.2d

i215 (D.C. Cir. 1987). Only the Fourth

Circuit has read Solem v. Helm to foreclose

proportionality review of sentences of terms

of year.

The Fourth Circuit's ruling is especially

troublesome for several reasons which make

this case particularly appropriate for

consideration by this Court.

First, if the sentence imposed here is

subjected to proportionality review under

Solem v. Helm's analytical framework, its

unconstitutionality seems clear. Obscenity

offenses involving consenting adults are

widely viewed as not particularly serious.4

4The study of the population's view of the

comparative seriousness of 140 different

crimes cited by this Court in Solem ranked an

obscenity offense (sale of pornographic

magazines) as less serious than 127 of the

other crimes studied, including driving while

a license is suspended, refusal to make

(footnote continued)

«» 19 «=

The State of North Carolina itself, the

jurisdiction into which the films were

shipped, classifies the crime of selling

obscene matter as an offense against public

morality and decency. This is a "Class J"

felony, the least serious felony recognized

under North Carolina law, punishable by a

(footnote continued from previous page)

essential repairs to rental property, passing

worthless checks of less than $100, and

soliciting for prostitution. See Rossi,

Waite, Bose & Berke, The Seriousness of

Crimes: Normative Structure and Individual

Differences, 39 Am. Soc. Rev. 224, 228-29

(1974). Other measures of gravity also

demonstrate the relative lack of seriousness

of obscenity crimes. The obscenity offenses

of which Petitioner stands convicted were

non-violent and victimless. No minors were

involved, and no participant was coerced or

Subjected to duress of any kind or even

involuntarily exposed to any offensive matter.

Even the Parole Release Guidelines of the

United States Department of Justice assign

violation of federal obscenity statutes an

offense severity rating of "Category 3," on a

scale where Category 8 is the most serious,

and Category 1 is the least. 28 C.F.R. §2.20

(1985).

maximum term of imprisonment of three years.

Supp.).?

The sentence Petitioner is serving -- a

term of a quarter of a century -- is

undeniably severe.® Counsel believe that it

SAlthough the states deal with obscenity

offenses in a variety of ways, most

jurisdictions treat obscenity crimes as

relatively minor.

6To be sure, under current Parole Release

Guidelines, Petitioner would be eligible for

parole after completing one-third of his 25

year term, that is, after eight and one-third

years. But the fact that every federal

offender, even those sentenced to life, is

eligible for parole consideration after 10

years or less suggests just how severe his

sentence is. See 18 U.S.C. §4205.

The sentencing judge insured that

Petitioner would not be released on parole

before serving eight and one-third years by

refusing his request that he be sentenced

pursuant to 18 U.S.C. §4205(b)(1), which would

have made him eligible for release earlier.

According to the Parole Release

Guidelines, an adult offender incarcerated for

a Category 3 offense would be expected to

serve somewhere between ten months and 32

months prior to release. An offender like

(footnote continued )

NE a eres

i :

LOR PI ph OE IE NRE PONTE ER

Ne 4 4

FN ee mimi “

is far harsher than any sentence ever imposed

for violation of state or federal obscenity

laws. Moreover, it is seriously out of line

with sentences actually imposed for other

offenses of much greater seriousness. Indeed,

the 300 month sentence imposed on Petitioner

is far longer than the average sentence

imposed by federal judges on persons convicted

of kidnapping, murder and rape.’

(footnote continued from previous page)

Petitioner whose parole prognosis

characteristics are "very good" would be

expected to serve between ten and 14 months.

See 28 C.F.R. §2.20 (1985). The sentence

imposed on Guglielmi insures that he will not

be considered for release before serving 100

months. hoe

7See Sourcebook of Criminal Justice Statistics

1984, U.S. Department of Justice, Bureau of

Labor Statistics at 576, Table 5.16, which

Shows the following average sentences, in

months, for selected offenses. _

First degree murder 182.9 months

Burglary 103.8

Embezzlement 32.8

Income Tax Fraud 26.3

Counterfeiting 37.8

Rape 115.0

(footnote continued)

Second, the government's role in causing

a series of offenses on which consecutive

sentences were imposed makes the sentence

particularly problematic and open to question

under the Constitution. See infra, Point III.

Finally, if the sentence imposed here is

beyond judicial review under the Eighth

Amendment, then there will necessarily be a

chilling effect on conduct protected by the

First Amendment. Few persons will run the

risk of a 25 year sentence -- or one of 35 or

45 or 55 years -- for dealing in sexually

explicit non-obscene material which may be

found by some jury, somewhere, to be legally

opscene.

(footnote continued from previous page)

Bribery 33.2

Gambling and lottery 24.8

Perjury 40.6

Kidnapping 236.2

: FF OID AIL PEM. Cy

ae AORN AI PEA IIS AONE SPL AE EIS te TI TTI PEL PETE ANE AE RTD a BEEN RIED TE INN NEE IEE BIS IE IIT EMER EIN NT NRE EMC NEP TH SLL én yee

Accordingly, this case is appropriate for

certiorari on several grounds. The judgment

of the Court of Appeals is in apparent

conflict with a recent ruling of this Court.

If left to stand, there will be a conflict

among the Circuits on an important

Constitutional question which affects the

rights of virtually every defendant sentenced

for a crime. If the Court of Appeals is

wrong, Petitioner is entitled to a judicial

determination, under the rule of Solem v.

Helm, as to whether his sentence is

proportional to his crimes. If it is not, he

is serving a sentence which the Constitution

forbids. Finally, if left standing, the

judgment will chill the exercise of protected

First Amendment rights.

No judge has suggested, and no court has

_ held, that Petitioner's sentence is properly

proportional to his crimes. Accordingly, the

7st

a . - ‘ NTRP SAN tern R a ae

SEAMS RETO RI REY, a kas Sea an RON eS htt NE i PRS EN ION IN en RAN YS NS NRHP sR TREY tes a ~ — ~ ;

writ of certiorari should be granted and, at

the very least, the case should be remanded to

the Court of Appeals with directions that it

determine whether the Petitioner's sentence is

proportional to his crimes.

POINT III

CONGRESS DID NOT INTEND AND,

EVEN IF IT DID, THE

CONSTITUTION DOES NOT PERMIT,

IMPOSITION OF CONSECUTIVE

SENTENCES BASED ON SEVERAL

INTERSTATE SHIPMENTS OF OBSCENE

FILMS WHERE THE SEVERAL

SHIPMENTS WERE ?tNiADE PURSUANT TO

REPEATED ORDERS FOR THE FILMS

PLACED BY THE FBI

Incarceration for fifteen years of the 25

year sentence in this case was imposed as

punishment for three interstate shipments of

films made pursuant to three different orders

for the films placed in a six-week period by

the FBI. Petitioner contends that, in

enacting the obscenity laws, Congress did not

intend to allow cumulative punishments for a

single course of conduct like that here which

is split into, and charged as, separate crimes

only as a result of the conduct of the FBI.

Moreover, Petitioner maintains that, even if

PN EEC RRC TEA IIE OE TA ict PRR TA i PERG MTEL ILD ig reel ttt tee

~

GREET Le AO

Congress did intend such a result, the

Constitution's Fifth and Eighth Amendments :

would not permit it.

As this Court has repeatedly noted, the

first step in assessing the permissibility of

cumulative punishments for related crimes is

determining whether Congress has authorized

such punishments. See, e.g., Albernaz v.

United States, 450 U.S. 333 (1981); Whalen v.

United States, 445 U.S. 684 (1980); Bell v.

United States, 349 U.S. 81 (1955).8

Petitioner contends that Congress did not

intend to permit the pyramiding of penalties

that was done here. Unlike the lengthy

sentences authorized, for example, under the

continuing criminal enterprise statute, this

8SWhile initially a matter of statutory -

construction, even this question is of

Constitutional magnitude for the Double

Jeopardy Clause prevents a sentencing court

from prescribing greater punishment than the

legislature intended. See Missouri v. Hunter,

429 U.S. 359, 366 (1983).

nas

. t

SPD IE Ak

SAGER LPP SIMRO. | SUR DAREN | rat all SEY a : - me

is not a case in which Congress specifically

authorized lengthy prison terms to deter very

serious, but very lucrative, criminal conduct.

In addition, there is surely no reason to

believe that Congress contemplated or intended

to permit federal agents to place repeated

orders for materials they believed to be

obscene and, by so doing, to increase the

defendant's exposure at will, and without

limit, without the possibility of judicial

review. But that is precisely the import of

the Fourth Circuit's ruling in this case.

Although the question was raised in that a

court, it did not address the questicn whether

Congress ever intended to permit the

imposition of lengthy, consecutive sentences

for Petitioner's course of conduct.

In any event, even if Congress intended

to allow the imposition of multiple

sonsecutive sentences for what is essentially

Bei ACNE IESE I 8 ENRON IRS Beh RRR APN ie IP AMINE HON RS ig pO

a Single crime violating a single societal

norm, Petitioner maintains that the Eighth and

Fifth Amendments to the Constitution would not

permit it. See O'Neil v. Vermont, 144 U.S.

323, 337 (1892) (Field, Harlan, and Brewer,

JJ., dissenting; consecutive sentences

totalling more than 54 years for 307 counts of

unlawfully selling intoxicating liquor vioiate

Eighth Amendment; majority did not reach the

issue on ground that it was not presented for

review). See also Consecutive Sentences in

Single Prosecutions: Judicial Multiplication

of Statutory Penalties, 67 Yale L.J. 916

(1958).

Where the sentences are imposed for

crimes committed as a result of governmental

Overreaching in the placing of repeated

orders, and based on the prosecutor's charging

of those crimes as multiple offenses, they may

also violate the due process requirement of

OE AAR TER RI IOS IT AAI EPS, —

. PRET LE TEAR SPIRE TN RG OE RT NEST AMEE Np ome a

a ito cA RE EINER CTO 8 Me eR. — ~

PE sees Oe On TA on : Z “ abik forgets » . *

fundamental fairness. Cf. Hampton v. United

States, 425 U.S. 484, 491 (Powell, J.,

concurring); id. at 495 (Brennan, J.,

dissenting) (1976); United States v. Russell,

411 U.S. 423 (1973).

These important questions of statutory

construction and of Constitutional rights

which have implicitly been answered in the

negative by the Fourth Circuit's, decision to

let the sentence stand are also worthy of

consideration by this Court.

2 PARTI cen nan

CONCLUSION

For the reasons stated, it is

respectfully requested that the Court grant

the petition for a writ of certiorari.

Respectfully submitted,

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway

New York, New York 10007

(212) 513-7676

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Dated: New York, New York

September 29, 1987

ORE EMM 7 I ROS SES “ ‘“ 7

ae ee eee re eae

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

United States of America,

Appellee,

-versus-

Louis Guglielmi,

Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at

Charlotte. Robert D. Potter, District Judge.

(C-CR-85-59)

ee ee ee re

Argued: July 16, 1986 Decided: May 2l, 1987

Before ERVIN and WILKINSON, Circuit Judges,

and HAYNSWORTH, Senior Circuit Judge.

Alan M. Dershowitz (Victoria B. Eiger; Nathan

Z. Dershowitz; Dershowitz & Eiger, P.C.;

Harold J. Bender; Louis Sirkin; Sheldon H.

Braiterman; Braiterman & Johnson, P.A. on

brief) for Appellant; Debra J. Stuart,

Assistant U.S. Attorney (Charles R. Brewer,

_United States Attorney on brief) for Appellee.

HAYNSWORTH, Senior Circuit Judge:

Guglielmi was convicted upon multiple

counts of an indictment charging interstate

transportation of obscene films and use of a

common carrier for interstate transportation

of the same films. His first, and perhaps

principal, argument is essentially that the

materials are so disgusting and repellent that

they could not be found to appeal to the

prurient interest of the average person, nor

to the average zoophiliac. The latter branch

of his contention is premised upon his

subordinate contention that there is no such

thing aS an average zoophiliac. The argument

is not without ingenuity, but we reject the

notion that greatly offensive material has the

protection of the First Amendment while less

offensive material does not.

os

Guglielmi was the operator of a warehouse

in Baltimore, Maryland from which he supplied

adult bookstores with films, written

materials, pictures and sexual aids and

devices. The operator of such a bookstore

from Charlotte, North Carolina was arrested,

and the FBI became interested in some films

found there which included scenes of

bestiality. The operator of the bookstore

said that he had purchased those films from

Guglielmi.

Thereafter, an FBI agent, operating

undercover, ordered more of such films from

Guglielmi and received them in Charlotte upon

the conclusion of shipments from Baltimore.

Guglielmi was indicted in the Western

District of North Carolina. The first count

charged him with conspiring with the owner of

the Charlotte bookstore and the owner's son to

ship obscene materials in interstate commerce.

The next ten counts were in five pairs. The

first of the pairs charged aiding and abetting

interstate transportation of a named film or

films in violation of 18 U.S.C.A. §1465

(1984); the second of the pair charged him

with the use of a common carrier for the

interstate transportation of the same film or

films in violation of 18 U.S.C.A. §1462

(1984).

A jury convicted him on all counts.

After pairing the counts for sentencing, the

district court imposed a five year sentence on

the conspiracy count and five years on each of

the paired transportation counts. Only the

first two were to run concurrently while the

remainder were to run consecutively, to make a

total sentence of twenty-five years. It also

imposed fines totaling $35,000.

II.

The parties have presented this -case as

if all of the portrayals in the eight named

films are bestial. Actually that is not the

case. We are informed that in six of the

eight films there are portrayals of a variety

of sex acts among humans. In one of them,

entitled "Snake Fuckers," for example, use of

what appears to be a live eel is only one of

many incidents. As the film opens, a young

woman is shown handling what appears to be a

large live eel that she drops on the floor.

An older woman appears and the two remove each

other's clothing and perform cunnilingus. The

younger woman then inserts the eel into the

vagina of the older woman. She moves it back

and forth. There is a film break, and the eel

is then shown inserted in the woman's anus

while another object has been inserted in the

woman's vagina. The two objects are moved

back and forth in their separate orifices.

There is a film break and the two women,

now clothed, and a man are shown seated at a

kitchen table while frying on the kitchen

stove are what appears to be cut up pieces of

eel. The man suddenly rises and displays his

erect penis. The older woman performs

fellatio upon him while the man and younger

woman disrobe and touch busy tongues together.

The man and the older woman are then shown

engaged in vaginal intercourse. The man

withdraws in time to spray his ejaculate

partly into the open mouth of the woman and

partly upon her face and breasts. The woman

then licks the head of the penis clean.

Two of the films are exclusively bestial.

In "Horny Boar," a young woman in a short

dress teases a boar. The boar persistenly

seeks to raise the back of her skirt with his

snout, though the skirt falls back each time.

Finally, the woman removes her dress and

panties and assumes a submissive crouching

position on the straw covered floor. A second

woman throws a rough cloth on the shoulders

and upper back of the crouching woman to

provide some protection from the boar's pawing

hooves. The boar mounts her and she reaches

back with her right hand to guide his penis

into her vagina. When the boar is finished,

the woman climbs over a pile of baled hay and

leaves the scene as the boar looks eagerly

after her. Later the woman returns. This

time with little ado she takes the submissive

crouching position. The boar mounts her, and

again she reaches back with her right hand to

guide his penis. When done, the boar falls

off to one side in apparent exhaustion or

relaxation.

The other film, "Horsepower," displays

two naked woman massaging a small pony's penis

with their hands and mouths. One woman then

positions herself beneath and beside the pony

and directs the pony's penis to her genitals.

There is little doubt that some touching

occurs, but because of the awkwardness of the

position, there is some doubt about vaginal

penetration. A large dog then appears. The

woman fondle and manipulate his penis. They

then have vaginal intercourse with the dog in

two different positions.

This is enough, perhaps, to demonstrate

Guglielmi's proposition that the films are

absoultely disgusting, but it should-_also

demonstrate that there is support for the

testimony of the government's expert witness

that each of the films would have an appeal to

the prurient interest of an otherwise sexually

normal person. Some men will find sexual

degradation of a woman titillating, while the

prurient interest of some males may be aroused

by explicit portrayals of a woman's genitals

during lesbian activity.

There is a reference in the record by the

defendant's "sexologist" to a film showing the

insertion of comparatively large objects, a

fist and a beer can, into a woman's vagina,

though she thought that the film had

scientific value in its demonstration of the

elasticity of the vagina.

The government's expert also expressed

the opinion that the films would appeal to the

prurient interest of a deviant sexual group

known as zoophiliacs, people who fantasize

about sex acts with animals.

IIl.

At the trial, there was much bickering

between the prosecutor and defense counsel

about the prurient interest branch of the

Miller v. California, 413 U.S. 15 (1973),

test. It was the position of the defense that

the prurient interest branch could be

satisfied only if the material appealed to the

prurient interest of the average person in the

sense that the average person viewing the

material would experience sexual arousal. The

prosecutor thought it enough that the material

was "directed to sexual arousal," and the

district court formulated the question as

being whether the material was an appeal to

prurient interest. This, Guglielmi contends,

was reversible error since it permitted the

jury to find the films obscene without finding

that the average person would experience

sexual arousal upon seeing them.

One of the defendant's expert witnesses

testified that zoophiliacs are not fungible.

Their fantasies are animal specific. One

whose fantasies are about sexual activity with

one animal would not be sexually aroused by

portrayals of sexual activity involving any

other animal. On the basis of that testimony,

Guglielmi contends that there is no such thing

aS an average zoophiliac, and that the sub-

groups are so small no findina of obscenity

can be based upon a finding of prurient appeal

to zoophiliacs.

IV.

The test prescribed by Miller v.

California is "(a) whether ‘the average

person, applying 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...;

and (c) whether the work, taken as a whole,

lacks serious literary, artistic, political,

or scientific value." Miller, 413 U.S. at 24

(quoting Kois v. Wisconsin, 408 U.S. 229, 230

(1972)). The focus here is upon the first

branch of the three part test, for there is no

doubt that the films here are patently

offensive and have no redeeming social value.

It bears reminder, however, that material is

not obscene unless it is patently offensive.

The average person comes into the test

not as the object of the appeal but as its

judge. It is he, not the most prudish, who

applying contemporary community standards,

determines whether or not the work appeals to

the prurient interest. There is no explicit

requirement that the average person determine

that tne material appeals to the prurient

A-12

interest of the average person. If that there

the case, the average juror would answer the

question by assessing his own reaction.

Doubtless there is an objective component

in the test. In Regina v. Hicklin, [1868]

L.R. 3 Q.B. 316, obscenity was judged by its

effect upon the most susceptible persons.

That approach was rejected in Roth v. United

States, 354 U.S. 476, 488-89 (1957).

Obscenity may not be so lightly found. The

effect upon less susceptible persons must be

put in the balance. As the offensiveness

requirement in the Miller test is more than

minimally met, however, the greater the number

of people who would react to the material with

revulsion and disgust. Surely Guglielmi is

right that the reaction of most people of

these films would be one of rejection and

disgust, not one of sexual arousal, but that

cannot lead to the conclusion that the most

A-13

ill

offensive material has constitutional

protection while less offensive material does

not. In other contexts, one may find _—

references to the prurient interest of the

average person, such as in Roth's rejection of

the Hicklin test, id. at 489-90, but such

references do not convert into a rule that if

the material is so offensive as to be more

disgusting to the average person than

appealing to his prurient interest, it may not

be found to be obscene. See Mishkin v. New

York, 383 U.S. 502, 508-09 (1966).

Tentative Draft No. 6 of the Model Penal

Code, quoted in Roth, had it right. In

rejecting the tendency to corrupt or debase or

arouse lust tests, it defines appeal to the

prurient interest as a reference “to qualities

of the material itself: the capacity to

attract individuals eager for a forbidden

look." Model Penal Code §207.10(2) comments,

at 10 (Tent. Draft No. 6, 1957). Those

individuals need not all be average persons.

See Pinkus v. United States, 436 U.S. 293,

301-02 (1978); Hamling v. United States, 418

U.S. 87, 128-30 (1974).

Material that provokes "only normal,

healthy sexual desires" is not obscene.

Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 498 (1985). It is obscene only if it

appeals to or provokes a prurient interest.

Such an interest was referred to in Roth as a

"shameful or morbid interest in nudity, sex or

excretion." Roth, 354 U.S. 487 n.20 (quoting

Model Penal Code §207.10(2) (Tent. Draft No.

1957)). Many persons, perhaps most persons,

having a normal, healthy interest in sex would

have no shameful or morbid interest in nudity,

sex or excretion. To meet the definition of

obscenity, material must appeal to such a

shameful or morbid interest and also be

patently offensive. The average person would

view such materials with an intellectual

curiosity, the defendant's expert witnesses

agree, but not experience a whetting of sexual

appetite. So much may be conceded, but if it

appeals to those “individuals eager for a

forbidden look," it meets the prurient

interest requirement of the Miller test.

For these reasons, we reject the

defendant's contention that material may not

be found to be obscen- unless it excites the

sexual drive of the average person. The more

offensive the material, the greater will be

the number who would react to it with

revulsion, but, as one commentator has

observed, "([N]Jleither the Supreme Court nor the

legislature intended that tasteful pornography

be suppressed while distasteful pornography

remains unregulated." F. Schauer, The Law of

Obscenity, 102 (1976).

To the extent

Treatman, 524 F.2d

read as supporting

we are unpersuaded

acccept the propos

Amendment lends no

material but envel

within its protect

For the same

was not required t

whether there was

zoophiliac and the

a person. See Pin

that United States v.

320 (8th Cir. 1975), may be

the defendant's contention,

by it. We simply cannot

ition that the First

protection to offensive

ops the most offensive

ive wings.

reasons, the district court

o ask the jury to find

such a thing as an average

appeal of the films to such

kus, 436 U.S. at 302?

Hamling, 418 U.S.

viewed the films,

expert witnesses p

make the proper de

at 128-29. The jurors

and, with such help as the

rovided, were competent to

termination.

V.

Before trial, the defendant made a motion

for recusal of the judge under 28 U.S.C.A.

§455(a) (West Supp. 1987), and now appeals

from the denial of that motion.

The motion was based upon remarks made by

the judge while imposing a sentence upon a

pornographer in an earlier case. The films in

that case were particularly vile and

repulsive. In imposing sentence, the judge

made it clear that he regarded the

distribution of such material as a serious

offense against society. The judge had been

exposed to those films in his judicial

capacity, however, and it is entirely

appropriate for a judge, when imposing a

sentence, to comment upon the nature and

gravity of the offense. See United States v.

Carmichael, 726 F.2d 158, 160 (4th Cir. 1984).

This case is wholly unlike Berger v.

United States, 255 U.S. 22 (1921). In that

case in the World War I era the defendant, who

was of German descent, was charged with

violations of the Espionage Act. In an

earlier case the judge, Kennesaw Mountain

Landis, had expressed himself as greatly

doubting the loyalty of every German-American.

The Supreme Court held, of course, that he

snould have recused himself in the Berger

case. The earlier public expression warranted

a reasonable belief that the judge was

prejudiced against any German-American who

might be brought before him upon charges of

violations of the Espionage Act. Here, there

is nothing to indicate a predisposition on the

part of the judge to believe that Guglielmi

was guilty of the offenses with which he was

charged. A general expression by a judge when

sentencing a defendant to a term in prison

that the crime of which he stands convicted

waS a serious one does not disqualify the

judge from presiding in later cases involving

defendants charged with similar offenses.

VI.

A few days before the trial was to

commence, the district judge signed an order

that the voir dire of the jurors would be

conducted by the judge and the parties would

have the right to propose questions to be

asked of the jurors. Though the usual

practice of most of the district courts in

this circuit is to have the judge conduct the

voir dire, the usual practice in the Western

District of North Carolina is to have the voir

dire conducted by the lawyers. The order in

this case was said to have been justified by

an interest in efficiency to enable the court

to reach and dispose of another case.

We see no abuse of discretion by the

district court. The defendant has no vested

interest in the use of any particular

procedure in voir dire. United States v.

Brunty, 701 F.2d 1375, 1378 (llth Cir.), cert.

denied, 464 U.S. 848 (1983).

The defense proposed a large number of

questions, and the district judge used most,

but not all, of them. He did not inquire of

the jurors about their personal attitudes

toward specific sexual practices.

We find nothing inherently unfair in the

voir dire. The jurors were asked a great many

questions designed to disclose their

associations and general attitudes. The

declination by the district judge to ask the

jurors about their personal reactions to

specified sex acts was well within the court's

discretion. See Hamling, 418 U.S. at 138-40;

—

see also United States v. Martin, 773 F.2d

579, 584 (4th Cir. 1985).

. VII.

Finally, the defendant complains about

the twenty-five year sentence imposed upon

him. He seeks to have this court conduct a

proportionality analysis of it and find that

it is so disproportionate as to amount to

cruel and unusual punishment in violation of

the Eighth Amendment.

This panel is concerned about the

sentence. The sentence is within the

Statutory limits, but the judge ordered that

the sentences on the five paired counts run

consecutively. Those counts were based upon

separate shipments of the offensive films, and

some of those shipments were instigated by the

FBI. An even greater number of offenses might

have been charged had the FBI not discontinued

its ordering of new films when it did.

Guglielmi had been in the business for a

number of years, but he had never been

convicted of any offense.

A panel of this court has recently held,

however, that Solem v. Helm, 463 U.S. 277

(1983), does not require a proportionality

review of any sentence less than life

imprisonment without possibility of parole.

United States v. Rhodes, 779 F.2d 1019 (4th

Cir. 1985), cert. denied, 106 S.Ct. 2916

(1986). This panel has no authority to

overturn Rhodes or to depart from its holding.

Only the en banc court may do that.

VIII.

Finding no error, the conviction is

affirmed, and we decline to review the

sentence.

AFFIRMED.

FILED Jul 1 1987

US COURT OF APPEALS

Fourth Circuit

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 85-5255

United States of America,

Appellee,

-versus-

Louis Guglielmi,

Appellant.

Upon consideration of the petition for

rehearing, there having been no request for a

poll of the court on the suggestion of

rehearing en banc, and with the concurrence of

Judge Ervin and Judge Wilkinson,

IT IS ORDERED that the petition for

rehearing be, and it is hereby is, denied.

/s/ Clement F. Haynsworth, Jr.

Clement F. Haynsworth, Jr.

United States Circuit Judge

July 1, 1987

SUPREME COURT OF THE UNITED STATES

No. A-103

LOUIS GUGLIELMI,

Applicant,

Ve

UNITED STATES.

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of

counsel for the applicant,

IT IS ORDERED that the time for filing a

petition for a writ of certiorari in the

above-entitled cause be, and the same is

hereby, extended to and including September

29, 1987.

/s/ William H. Rehnquist

Chief Justice of the

United States

Dated this 6th

day of August, 1987.