# Petition for Writ of Certiorari — Guglielmi v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1019

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2391%3A1. Public record. Not legal advice.