Opposition Brief — Guglielmi v. United States

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No. 87-532

eineinaiin Lb JOSEPH F. SPANIOL, IR.

In the Supreme Court of the United States

OCTOBER TERM, 1987

Louis GUGLIELMI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the court of appeals held that sexuaijy ex-

plicit films may be found to be obscene if they have the

capacity to evoke curiosity among prospective viewers.

2. Whether petitioner’s five consecutive five-year

sentences violate the Eighth Amendment because they are

disproportionate to the offenses of which he was con-

victed.

3. Whether petitioner was improperly sentenced to

consecutive prison terms for acts that were part of a con-

tinuing course of criminal conduct.

(I)

TABLE OF CONTENTS

Page

ee LG hopin a be vee se cess ee's l

Ne dy wae nacpidecseseses l

Er Oe 1

ee ee ee 5

Dn ee haa ne ce aee ses es 17

TABLE OF AUTHORITIES

Cases:

Albernaz v. United States, 450 U.S. 333 (1981) ......... 15

Bell v. United States, 349 U.S. 81 (1955) ............... 16

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) .. 5

Chandler v. Jones, 813 F.2d 773 (6th Cir. #987) ......... 11

Foots v. Louisiana, 793 F.2d 610 (Sth Cir. 1986) ........ 13

Hamling v. United States, 418 U.S. 87 (1974) ........... 8

Holley v. Smith, 792 F.2d 1046 (11th Cir. 1986), cert.

denied, No. 86-6408 (Apr. 20, 1987) ................ 12

Hutto v. Davis, 454 U.S. 370 (1982) .................4.. 12

Miller v. California, 413 U.S. 15 (1973) ................ 3

Mishkin v. New York, 383 U.S. 502 (1966) ............. 8

Missouri v. Hunter, 459 U.S. 359 (1983) ............... 16

Moreno v. Estelle, 717 F.2d 171 (Sth Cir. 1983), cert.

RI, Ge lc. SIS CESS) ww cc cee 12

Pinkus v. United States, 436 U.S. 293 (1978) ........... 7

Roth v. United States, 354 U.S. 476 (1957) ............. 5

Rummel v. Estelle, 445 U.S. 263 (1980) ................ 10, 12

Solem v. Helm, 463 U.S. 277 (1983) .............. 9, 10, 11, 14

Tuitt v. Fair, 822 F.2d 166 (ist Cir. 1987), cert. denied,

Ey 13

United States v. Bonnet, 769 F.2d 68 (2d Cir. 1985) ...... 13

United States v. Brown, 770 F.2d 768 (9th Cir.), cert.

ES) 16

United States v. Dawson, 790 F.2d 1565 (11th Cir. 1986) . 16

United States v. Dennison, 730 F.2d 1086 (7th Cir.),

cert. denied, 469 U.S. 916 (1984) ................... 16-17

United States v. Eggleton, 799 F.2d 378 (8th Cir. 1986) ...

(111)

IV

Cases — Continued: Page

United States v. Hack, 782 F.2d 862 (10th Cir.), cert.

denied, 476 U.S. 1184 (1986) ...........-.- ee eee ees 13

United States v. Ortiz, 742 F.2d 172 (2d Cir.), cert.

denied, 469 U.S. 1075 (1984) ............ 0 eee eee eee 13

United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974),

cert. denied, 419 U.S. 1120 (1975) ..........-.-.-55. 16

United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985),

cert. denied, 476 U.S. 1182 (1986) .............. 5, 10-11, 13

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

1986), cert. denied, No. 86-6449 (May 26, 1987) ....... 11

United States v. Russell, 411 U.S. 423 (1973) ........... 17

_ United States v. Sato, 814 F.2d 449 (7th Cir. 1987) ...... 12

United States v. Terrovona, 785 F.2d 767 (9th Cir.), cert.

denied, 476 U.S. 1186 (1986) ............. cece eeee 13

United States v. Universal C.I.T. Corp., 344 U.S. 218

es wren ee Peer Pr a are ren ere 16

United States v. Villano, 529 F.2d 1046 (10th Cir.), cert.

denied, 426 U.S. 953 (1976) .... 0.2... . cece cee eee eees 16

United States v. Woodward, 469 U.S. 105 (1985) ........ 16

Constitution and statutes:

U.S. Const.:

pS ee Pere were er rrr erry Ts 5

SE EE os hae sana haa uw aee 5, 9, 10, 11, 13, 14, 15

Sentencing Reform Act of 1984, 18 U.S.C. (Supp. IV)

a ee rer rr rrr Tre ry ere eee ee 15

EE Fae es oe. \ ere eee ee 15

ee PE See devenexeeeeis eR er eT erry Cree 2

Me oes be eebaeteeebene earn ame ae ees 2, 13

WEED i veined Vadeun ns dna eebeeon kee aes 16

oe keane ee A ORE REA SO 2, 13, 16

ee i ode adawake eu bade OR AEEE NES 10

28 U.S.C. (Supp. I11) 991(b)(1)(B) ... «eee eee eee 15

28 U.S.C. (Supp. 111) 991-996... cece eens 15

a | | er 15

Ark. Stat. Ann. (Supp. 1985):

OE eee re eee ee 14

LIED. vixen pdb avcndn died skennt dpe assess 14

Statutes — Continued:

Fla. Stat. Ann. (West 1976 & Supp. 1987):

Bee Ee

Boe 2 Se ees

Mass. Ann. Laws ch. 272, § 29 (Law. Co-op. & Supp.

SE Sncokndis isa eaiehe sues ee teas viene

Mo. Ann. Stat. (Vernon 1979 & Supp. 1987):

§ 558.011(4) (Supp. 1987) .... 0.000.000.0000...

DF PO 6 i kioee dna oa cee eaves Ves cdeces

N.D. Cent. Code (1985):

POLS Fe a ee ee ee ee OT,

fo 8 RR ea err peret wy aii ee ole ae |

Okla. Stat. Ann. tit. 21, § 1021 (West Supp. 1987) ......

Pa. Stat. Ann. tit. 18 (Purdon 1983):

RS ily 68% o's ae ues AGS Seka Se eT eee

| SSO ok ar ane Paar Sey Wee fla.

RS Pe re Pre Seer t nem RCE Bn

Wash. Rev. Code Ann. (Supp. 1987):

I ara ks cy cau an ae oon eeeean

DI tC eer a ee ee eee

Wis. Stat. Ann. (West 1982): >

DI es os a's ans cu eyes ae ee

PE ort oe a UL. ee ee

Miscellaneous:

Model Penal Code (Tent. Draft No. 6, 1957) ...........

U.S. Fifth Circuit District Judges Ass’n, Pattern Jury

FR ere rn et oe

U.S. Eleventh Circuit District Judges Ass’n, Pattern Jury

PORMOPUCIIIIES TE PD ook oh ond Sed enueseel.

Page

BEST AVAI

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-532

Louis GUGLIELMi, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A2-A24)

is reported at 819 F.2d 451.

JURISDICTION

The judgment of the court of appeals was entered on

May 21, 1987. A petition for rehearing was denied on July

1, 1987 (Pet. App. A25). On August 6, 1987, the Chief

Justice extended the time within which to file a petition for

a writ of certiorari to and including September 29, 1987,

and the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of North Carolina, petitioner was

convicted on five courts of interstate transportation of ob-

(1)

2

scene films, in violation of 18 U.S.C. 1465; five counts of

using a common carrier for the interstate transportation of

obscene films, in violation of 18 U.S.C. 1462; and con-

spiracy to ship obscene materials, in violation of 18

U.S.C. 371. The transportation counts were paired with

the shipment counts for sentencing, and consecutive five-

year terms were imposed on each set of paired counts. In

addition, a concurrent five-year term was imposed on the

conspiracy count for a total sentence of 25 years’ im-

prisonment. Petitioner was also sentenced to pay fines

totaling $35,000 (Pet. App. A4-A5). The court of appeals

affirmed.

1. As summarized in the opinion of the court below

(Pet. App. A3-A9), the government’s evidence at trial

showed that, beginning in July 1983, the FBI began to in-

vestigate the interstate shipment of obscene materials to

the New Freedom Bookstore in Charlotte, North

Carolina. After purchasing some films from the store, an

FBI agent arrested the proprietor, who informed him that

he had obtained the materials from petitioner, who

operated a wholesale outlet in Baltimore, Maryland,

known as Central Sales, Inc.

The agent then enlisted the former proprietor of another

“adult” book store in the Charlotte area to order similar

films from petitioner. Petitioner selected several specific

titles and made three shipments of films from Baltimore to

Charlotte by common carrier in July, August, and

September 1984 (C.A. App. 734-738, 779). Also in

September 1984, an undercover FBI agent visited the large

warehouse in Baltimore operated by Central Sales, and

petitioner showed him the room where he kept “animal

films.” Petitioner advised the agent to “[bJe careful in sell-

ing” those films, because “you can get yourself in a lot of

trouble with these” (id. at 786-788).

The eight films seized from the New Freedom Bookstore

or received through interstate shipments from petitioner

depict, among other things, acts of bestiality. Three of the

films are described in detail in the opinion of the court

below (Pet. App. A5-A9). One, entitled “Snake Fuckers,”

shows two women engaging in sex acts involving a live eel,

which is later fried on a kitchen stove while men and

women are depicted performing heterosexual and

homosexual sex acts (id. at AS-A6). Other films, including

the other two described by the court of appeals (id. at

A7-A8), depict sex acts involving human males and

females and a cow, a boar, horses, dogs, chickens,

donkeys and a pig (GXs 1-9; see Gov’t C.A. Br. 14-17).

2. At trial, petitioner maintained that the “prurient in-

terest” branch of the three-part test of Miller v. California,

413 U.S. 15, 24 (1973), could be satisfied only if the

material appealed to the prurient interests of either the

average person or the average zoophiliac. He further

argued that the material would not appeal to the average

person and that, because there is no such thing as an

“average” zoophiliac, he could not be convicted. The tria!

judge, however, instructed the jury, using a pattern jury

instruction,' as follows (C.A. App. 1217):

The first test to be applied, therefore, in determining

whether given material is obscene is whether the

predominant theme or purpose of the material, when

viewed as a whole and not part by part, and when

considered in relation to the intended and probable

recipients, is an appeal to the prurient interest of the

average person of the community as a whole, or the

prurient interest of members of a deviant sexual

group, as the case might be.

' See, e.g., U.S. Fifth Circuit District Judges Ass’n, Pattern Jury

Instructions 110 (1983 ed.); U.S. Eleventh Circuit District Judges

Ass’n, Pattern Jury Instructions 143 (1985 ed.).

4

The jury returned guilty verdicts on the conspiracy

count, on all five counts of interstate transportation of

obscene films, and on all five counts of the use of a com-

mon carrier to ship them. The transportation and use

counts were paired with respect to five different

shipments. Petitioner had shipped three of the films,

which formed the basis for two pairs of counts in the in-

dictment, to the New Freedom Bookstore. He sent the re-

maining films to the FBI as the result of its undercover

operation. The trial judge imposed consecutive five-year

terms on each of the five sets of paired counts and a con-

current five-year term on the conspiracy count.

3. On appeal, petitioner claimed that the evidence was

insufficient to establish that the films appealed to the

prurient interest and that the trial court’s instruction con-

cerning prurient interest was incorrect, because the court

failed to instruct that the material in question must appeal

to the average adult or the average member of a deviant

sexual group. Petitioner also claimed that the 25-year ag-

gregate sentence he received constituted cruel and unusual

punishment because it was disproportionate to the of-

fenses of which he was convicted.

The court of appeals rejected those claims.” After

reviewing the contents of the films on which the prosecu-

tion was predicated, the court concluded that “there is sup-

port 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” (Pet.

App. A8-A9). In addition, the court noted that the

government’s expert witness had expressed the opinion

that the films would appeal to the prurient interest of

zoophiliacs (id. at AQ).

2 The court of appeals also rejecied claims that the trial judge

abused his discretion in conducting the voir dire examination himself

and in failing to ask particular questions, and that he should have

recused himself because of personal bias (Pet. App. Al8-A22)

5

The court of appeals noted that erotic material is not

obscene unless it “appeals to or provokes a prurient in-

terest” (Pet. App. A15). That is, the material “must appeal

to * * * a shameful or morbid interest and also be patently

offensive” (id. at A15-A16). The fact that the material

provokes only curiosity among normal persons is not

enough to render it nonobscene, the court noted, if the

material appeals to the prurient interest of members of a

deviant sexual group (id. at Al4-A16). Thus, the court

held that it was unnecessary for the material to “excite[ ]

the sexual drive of the average person” in order for it to be

found obscene (id. at Al6). In this case, the court ob-

served, “[t]he jurors viewed the films, and, with such help

as the expert witnesses provided, were competent to make

the proper determination” (id. at A17).

The court expressed concern about the length of the

sentence but held that the sentence was permissible

because it was well within statutory limits. The court also

read its own prior decision in United States v. Rhodes, 779

F.2d 1019 (4th Cir. 1985), cert. denied, 476 U.S. 1182

(1986), to hold that the Eighth Amendment does not re-

quire proportionality review of-any sentence of less than

life imprisonment without parole. Pet. App. A22-A23.

ARGUMENT

1. The First Amendment protects some materials that

deal with sex. “[MJaterials that provoke[ ] only normal

sexual reactions” and “material that, taken as a whole,

does no more than arouse, ‘good, old fashioned, healthy’

interest in sex’. are protected. Brockett v. Spokane Ar-

cades, Inc., 472 U.S. 491, 499 (1985). It is to distinguish

such materials from obscenity that this Court has included

a “prurient interest” component in the definition of

obscenity. See Roth v. United States, 354 U.S. 476, 487 &

n.20 (1957).

6

Petitioner does not and cannot maintain that the

materials at issue in this case — films showing both bestiali-

ty and various sexual acts performed by human be-

ings — would appeal to a normal and healthy rather than a

prurient interest in sex. Rather, he maintains that they

would appeal to no one (except, perhaps, certain

zoophiliacs) and that “materials which are so repulsive

that they do not excite, arouse, or stimulate sexually are

outside the scope of obscenity regulation” (Pet. 11). Peti-

tioner further contends (Pet. 7-8, 10-11, 12-13 n.2) that the

court of appeals improperly extended the reach of the

obscenity laws to encompass materials that do not have

the capacity to arouse viewers sexually, but merely have

the capacity to evoke the curiosity of viewers. He bases

that characterization of the court of appeals’ opinion on a

reference in the opinion to a comment in the 1957 draft of

the Model Penal Code, in which the reporter observed that

the concept of an appeal to the prurient interest refers “to

qualities of the material itself: the capacity to attract in-

dividuals eager for a forbidden look” (Model Penal Code

§ 207.10(2), comment at 10 (Tent. Draft No. 6, 1957),

quoted at Pet. App. Al4-A]5).

Contrary to petitioner’s contention, the court of appeals

did not hold that materials-may be obscene even if they

have no capacity to provoke a sexual response in anyone.

To the contrary, the court made it clear that, in order to be

judged obscene, the materials in question must appeal to a

shameful or morbid interest in sex in the average person,

or in members of a deviant sexual group (Pet. App.

A15-A16). The reference to the 1957 draft of the Model

Penal Code did not lead the court, as petitioner suggests

(Pet. 10-11), to “reject[ ]” or “distort” tests for obscenity

that this Court has developed; rather, the reference was

designed simply to explain the underlying rationale of the

prurient interest test that this Court has applied ever since

Roth. In particular, the court of appeals did not suggest

that jury instructions should be phrased in terms of “for-

bidden look[s]}.” Instead, the court explained why the

standard jury instruction that was given in this case, which

was phrased in terms of “an appeal to the prurient

interest,” was proper and why the evidence in this case was

sufficient to convict. The court further explained (Pet.

App. A15) that material is obscene “only if it appeals to or

provokes a prurient interest,” /.e., “whetting of sexual ap-

petite” (id. at Al6). The court’s discussion thus made it

clear that an appeal to mere curiosity would not be suffi-

cient.

The district court also did not mislead the jury in its in-

structions on the “prurient interest” requirement. The

district court’s instruction on prurient interest (see page 3,

supra) was almost identical to the instruction that this

Court approved in Pinkus v. United States, 436 U.S. 293,

301-302 (1978). After explaining that the material had to

appeal to either the prurient interest of the average person

in the community or the prurient interest of members of a

deviant sexual group (C.A. App. 1217), the court de-

scribed a prurient interest as “a morbid, degrading and

unghealthy interest in sex,” and explained that “[t]he test is

whether the group to whom the film is directed would have

a prurient interest in it” (C.A. App. 1219).Those instruc-

tions informed the jurors that, in order for petitioner to be

convicted, the films had to be of a sort that, in the jury’s

judgment, would appeal to the unwholesome interest in

sex Of either the average member of the community or

members of an identified deviant sex group. The instruc-

tions are entirely consistent with this Court’s teachings on

the issue of prurient appeal, both with regard to materials

likely to appeal to the average person in the community

and with regard to materials directed at members of de-

viant sexual groups.

‘BEST AVAILABLE COPY

8

In Mishkin v. New York, 383 U.S. 502, 509 (1966), this

Court rejected the claim “that the books depicting sexually

deviant practices are devoid of prurient appeal” simply

because they would not have appealed to the average

member of the community. The Court held that 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). In Hamiling v.

United States, 418 U.S. 87 (1974), the Court addressed the

question of how the prurient interest test applies to cases

in which the materials could appeal to either the average

person or a member of a deviant sexual group. On that

issue, the Court held in Hamling that the jury could find

that the materials satisfied the prurient interest test if some

of them appealed to the prurient interest of deviant groups

and other portions appealed to the prurient interest of the

average person (id. at 128).

That was precisely the case here. Six of the eight films at

issue in this case contained depictions of human beings

engaged in sexual activities with one another as well as

with animals (GXs 1-6, 9). The other two films featured

sexual activity between humans and animals — principally

intercourse between women and farm animals (GXs 7, 8).

The government’s expert testified at trial that some of the

material in the films would appeal to the prurient interest

of the average person and other portions of the materials

would appeal to the prurient interest of zoophiliacs (C.A.

App. 891-893). That evidence gave the jury a sufficient

‘basis on which to find that the films were obscene.

Petitioner argued in the court of appeals that the district

court erred by failing to instruct the jury that in order to

be obscene, the films had to appeal to the “average”

9

zoophiliac. In both the district court and the court of ap-

peals, however, petitioner made the entirely inconsistent

argument that there was no such thing as an “average”

zoophiliac, but that zoophiliacs are all “animal-specific” in

their tastes. See Pet. App. A2, All. Rather than requiring

the jury to engage in a pointless inquiry as to whether there

is an “average” zoophiliac or only discrete subgroups of

zoophiliacs, each with their own “animal-specific”

fetishes, the district court properly resolved the problem

by requiring the jurors to find that the materials appealed

to the average adult member of the adult community as a

whole or to members of some deviant sexual group; the

court left it to the jury to determine whether the materials

in this case would have prurient appeal either to

zoophiliacs as a whole or to specific subgroups among the

general group of zoophiliacs. In either event, the materials

would satisfy the “prurient interest” test; it is no defense

that the deviant group or subgroup at which the materials

are directed is small.

2. Petitioner also claims (Pet. 14-25) that he received a

sentence so severe that it violates the Eighth Amendment

as construed in Solem v. Helm, 463 U.S. 277 (1983). The

decision in Helm, however, does not require that peti-

tioner’s sentence be overturned, and the judgment of the

court of appeals rejecting petitioner’s Eighth Amendment

argument is correct and does not conflict with the decision

of any court of appeals.

In Helm, the Court held that the Eighth Amendment re-

quires that a “criminal sentence must be proportionate to

the crime for which the defendant has been convicted”

(463 U.S. at 290). The Court listed three factors that

reviewing courts should use for guidance when considering

the proportionality of a sentence: (1) the gravity of the of-

fense and the harshness of the penalty; (2) the sentences

imposed on other criminals in the same jurisdiction; and

(3) the sentences imposed for the same crime in other

10

jurisdictions (id. at 292). Applying this analytical

framework to the case before it, which involved a sentence

of life imprisonment without possibility of parole under a

state recidivist statute for uttering a $100 worthless check,

the Court concluded that the sentence was dispropor-

tionately harsh and, therefore, violated the Eighth

Amendment (id. at 295-303).

The Helm Court made it clear that it would not require

an extended proportionality review in cases involving less

severe sentences. It explained that, as a general principle,

it is not the function of an appellate court to substitute its

judgment for that of a sentencing court as to the ap-

propriateness of a particular sentence; rather, in applying

the Eighth Amendment, the appellate court decides only

whether the sentence is within constitutional limits.

Therefore, “f{i]Jn view of the substantial deference that

must be accorded legislatures and sentencing courts, a

reviewing court rarely will be required to engage in ex-

tended analysis to determine that a sentence is not con-

stitutionally disproportionate.” 463 U.S. at 290 n.16.

Likewise, the Court was careful to distinguish—not to

overrule— Rummel v. Estelle, 445 U.S. 263 (1980), which

upheld a life sentence for the third of three nonviolent

property crimes involving $229.11 altogether. See 463 U.S.

at 288 n.13, 297, 300-303 & n.32.

Relying on the express disclaimer in Helm, 463 U.S. at

290 n.16, and the distinction this Court drew between the

facts in Helm and those in Rummel, the court of appeals

in a previous decision had held that He/m “requires an ex-

tensive proportionality analysis only in those cases involv-

ing life sentences without parole.” United States v.

3} Among other things, the Helm Court noted that “Rummel was

eligible for a reasonably early parole” (463 U.S. at 304 n.32)—i.e., 12

years (id. at 297, 300-301). Petitioner concedes that he is eligible for

parole even earlier—i.e., in eight years (Pet. 21 n.6; see 18 U.S.C.

4205(a)).

LE

11

Rhodes, 779 F.2d 1019, 1027-1028 (4th Cir. 1985), cert.

denied, 476 U.S. 1182 (1986).4 The Rhodes approach is

similar to that taken by several other courts of appeals that

have concluded that “[iJn cases factually similar to Rum-

mel, Rummel still provides the rule, and a proportionality

challenge to a particular sentence may be rejected without

application of the Solem [v. Helm] objective criteria test.”

Chandler v. Jones, 813 F.2d 773, 778-779 (6th Cir. 1987)

(life sentence with parole eligibility after 30 years not

violative of Eighth Amendment); see United States v.

Rosenberg, 806 F.2d 1169, 1175 (3d Cir. 1986) (expressing

agreement with Fourth Circuit that in cases not involving

life sentence without parole, an abbreviated proportionali-

ty review is appropriate), cert. denied, No. 86-6449

4 The government cited this passage in its brief in the court of ap-

peals (at 40) and proceeded to argue that the sentence imposed was

sufficiently proportionate to the offenses to satisfy the Eighth Amend-

ment. The government did not argue that Rhodes or any other deci-

sion allowed the sentence to be upheld without any proportionality

review at all. Petitioner’s reply brief in the court of appeals (at 15),

however, inaccurately characterized the government’s argument as be-

ing “that, under this Court’s decision in United States v. Rhodes, * * *

any prison sentence short of a life sentence without parole is

automatically consistent with the Constitution and not subject to at-

tack under the Eighth Amendment.” Although any such government

argument would have been a misreading of Rhodes (in which the court

did conduct Eighth Amendment proportionality review of 50- and

75-year terms of imprisonment), petitioner did not point that fact out;

indeed, his brief made no other mention of Rhodes. Unfortunately,

the court of appeals accepted petitioner’s inaccurate characterization

of Rhodes and considered itself bound to uphold the sentence in this

case without any proportionality review, extensive or otherwise (Pet.

App. A23). We agree with petitioner that the court of appeals erred by

failing to conduct any proportionality review. There is no need for this

Court to correct that error, however, because petitioner’s sentence is

in fact sufficiently proportionate to his offenses to satisfy the Eighth

Amendment.

12

(May 26, 1987); Holley v. Smith, 792 F.2d 1046, 1049

(11th Cir. 1986) (Helm not to be construed as holding that

extensive review of all prison sentences is constitutionally

required), cert. denied, No. 86-6408 (Apr. 20, 1987);

Moreno v. Estelle, 717 F.2d 171, 179-180 (Sth Cir. 1983)

(Rummel and not Helm governs sentences involving less

than life terms without parole), cert. denied, 466 U.S. 975

(1984); see also United States v. Sato, 814 F.2d 449,

453-454 (7th Cir. 1987).

No extended proportionality analysis is required in this

case because petitioner’s sentence easily passes constitu-

tional muster. First, petitioner’s 25-year sentence, with a

possibility of parole in eight years, is less harsh than the

sentences upheld in Rummel v. Estelle, supra, and Hutto

v. Davis, 454 U.S. 370 (1982), even though petitioner’s

crimes were at least as serious as the crimes involved in

those cases.* It is difficult to construct an argument that

would recognize the constitutionality of the punishments

in Rummel and Davis but strike down the punishment in

this case; petitioner has never tried to construct such an

argument.°®

5 Rummel involved a life sentence, with parole eligibility in 12 years

(445 U.S. at 280-281), for the crime of obtaining $120.75 by false

pretenses (a crime preceded by two other property crimes that netted

the defendant a total of $108.36). Davis involved a 40-year sentence

for two counts arising out of a single nine-ounce marijuana transac-

tion. It seems obvious that the crimes involved in this case are more

serious than the ones involved in Rummel. As to Davis, reasonable

persons could differ about whether a single marijuana transaction

more seriously offends society than the operation of a wholesale outlet

for obscene materials, but the latter plainly is not so much less serious

than the former as to require different constitutional results in Davis

and in this case. Cf. Rummel, 445 U.S. at 282-283 n.27.

6 In his petition (at 16 n.3), as in his reply brief in the court of ap-

peals (at 16), petitioner has limited his discussion of Rummel to the

assertion that it does not “foreclose proportionality review of

sentences of imprisonment”—a point we readily concede. Petitioner

13

Likewise, petitioner’s sentence and crimes are at least

roughly comparable in their severity and seriousness to

those in other cases in which the courts of appeals have re-

jected Eighth Amendment challenges.’ Indeed, petitioner

does not claim that any court of appeals has found an

Eighth Amendment violation in the imposition of a

25-year or comparable sentence for crimes that are in any

way similar to his.

Moreover, the five-year maximum ‘sentence under 18

U.S.C. 1462 and 1465, which petitioner received on each

of five counts, is equal to or less than the maximum

sentence for a single count of similar conduct in at least

nine States (Oklahoma, Pennsylvania, Arkansas, Florida, :

Massachusetts, Missouri, North Dakota, Washington,

: has never attempted to show that this case involves greater dispropor-

tionality than did Rummel.

7 See, e.g., United States v. Fermin Castillo, 829 F.2d 1194, 1200

(ist Cir. 1987) (nothing in the Constitution forbids the imposition of

six consecutive five-year sentences for six uses of the wires in the

course Of a single wire fraud scheme; defendant’s actual 12-year

sentence did not violate Eighth Amendment and was “not * * * even

particularly severe”); Tuitt v. Fair, 822 F.2d 166, 180-181 (ist Cir.

1987) (life imprisonment under recidivist statute for armed robbery),

cert. denied, No. 87-5474 (Nov. 9, 1987); United States v. Eggleton,

799 F.2d 378, 384 (8th Cir. 1986) (45-year sentence for armed bank

robbery); Foots v. Louisiana, 793 F.2d 610 (Sth Cir. 1986) (10-year

term for purse snatching); United States v. Terrovona, 785 F.2d 767,

77% (9th Cir.) (one year’s imprisonment for making false statement),

cert. denied, 476 U.S. 1186 (1986); United States v. Hack, 782 F.2d

862, 869 (10th Cir.) (55-year term for attempted skyjacking and con-

spiracy), cert. denied, 476 U.S. 1184 (1986); United States v. Rhodes,

supra (50- and 75-year sentences without parole for operating a con-

tinuing criminal enterprise); United States v. Bonnet, 769 F.2d 68, 71

(2d Cir. 1985) (minor sentenced to two consecutive five-year terms for

auto theft); United States v. Ortiz, 742 F.2d 712 (2d Cir.) (10-year

term with parole eligibility after five years for drug distribution), cert.

denied, 469 U.S. 1075 (1984).

ees

14

and Wisconsin).* Congress’s judgment about the severity

with which obscenity should be handied, although it may

be a harsher judgment than that reached by many state

legislatures, is hardly unique. By contrast, in Helm—the

only case in which this Court has ever struck down a term

of imprisonment on Eighth Amendment grounds —“[iJt

appear[ed] that Helm was treated more severely than he

would have been in any other State” (Solem v. Helm, 463

U.S. at 300 (emphasis added)).

To be sure, petitioner received not one maximum

sentence but five consecutive maximum sentences (as

presumably would have been permitted if he had engaged

in similar conduct in the States and had been charged

under their law), for a total sentence of not five but 25

years. But petitioner was guilty of more than one crime; in

fact, he was convicted of 11 separate offenses, for which

§ Okla. Stat. Ann. tit. 21, § 1021 (West Cum. Supp. 1987) (ten-year

maximum for sale of obscene matter); Pa. Stat. Ann. tit. 18,

§ 5903(a)(2) and (h)(1) (Purdon 1983) (sale of obscene materials for

the purpose of resale is a felony of the third degree); id. § 1103(3)

(seven-year maximum for felony of the third degree); Ark. Stat. Ann.

§ 41-3585.2(2) (Cum. Supp. 1985) (promoting obscene materials is a

class D felony); id. § 41-901(1)(e) (six-year maximum for class D

felony); Fla. Stat. Ann. § 847.07 (West Cum. Supp. 1987) (wholesale

promotion of obscene-materials is a felony in the third degree); id.

§ 775.082(3)(d) (West 1976) (five-year maximum for felony in the

third degree); Mass. Ann. Laws ch. 272, § 29 (Law. Co-op. Supp.

1987) (five-year maximum for sale of obscene materials); Mo. Ann.

Stat. § 573.020(2) (Vernon 1979) (promoting pornography in the first

degree is a class D felony); id. § 558.011(4) (Vernon Cum. Supp. 1987)

(five-year maximum for class D felony); N.D. Cent. Code

§ 12.1-27.1-01(1) (1985) (sale of obscene material is a class C felony);

id. § 12.1-32-01(4) (five-year maximum for class C felony); Wash.

Rev. Code Ann. § 9.68.140 (Cum. Supp. 1987) (promoting por-

nography is a class C felony); id. § 9A.20.021(1)(c) (five-year max-

imum for class C felony); Wis. Stat. Ann. § 944.21(1)(a) (West 1982)

(sale of obscenity is a class D felony); id. § 939.50 (3)(d) (five-year

maximum for class D felony).

ee |

15

he could have been sentenced to a total of 55 years’ im-

prisonment. In any event, as we have noted, even con-

sidered in the aggregate, petitioner’s 25-year sentence is

less severe than sentences that have been upheld by this

Court and by the courts of appeals.

Furthermore, any Eighth Amendment issues presented

by this case are of little or no continuing importance, at

least as regards sentences imposed by federal courts. On

November 1, 1987, the Sentencing Reform Act of 1984

went into effect. See 18 U.S.C. (Supp. IV) 3551 et seg.; 28

U.S.C. (Supp. III) 991-998. That statute requires trial

judges to impose sentences within the range established by

guidelines promulgated by the United States Sentencing

Commission. See 18 U.S.C. (Supp. IV) 3553; 28 U.S.C.

(Supp. HI) 994(a)(1). In turn, the statute providing

guidance to the Sentencing Commission in establishing

sentencing guidelines states that the Commission should

“provide certainty and fairness in meeting the purposes of

sentencing, avoiding unwarranted sentencing disparities

among defendants with similar records who have been

found guilty of similar criminal conduct.” 28 U.S.C.

(Supp. III) 991(b)(1)(B). Accordingly, after November 1,

1987, application of the Commission’s guidelines by trial

judges in imposing sentence should virtually if not entirely

eliminate the incidence of sentences in the federal system

that are even arguably subject to attack as _ being

disproportionate.

3. Finally, petitioner claims (Pet. 26-30) that it was im-

proper for the trial judge to impose consecutive sentences

for the three pairs of counts involving the shipment and

transportation of obscene materials to the FBI.

As explained in Albernaz v. United States, 450 U.S.

333, 344 (1981), the question whether a court may impose

multiple punishments following conviction on related

criminal charges is resolved by reference to what

punishments the legislative branch has authorized. See

ecient tele

16

also United States v. Woodward, 469 U.S. 105, 108

(1985); Missouri v. Hunter, 459 U.S. 359, 366-369 (1983).

In the context of a repetitive series of criminal acts in fur-

therance of an ongoing scheme, the inquiry focuses on

determining what Congress intended as the unit of prose-

cution. See, e.g., Bell v. United States, 349 U.S. 81, 83

(1955); United States v. Universal C.I.T. Corp., 344 U.S.

218, 221 (1952); United States v. Fermin Castillo, 829 F.2d

1194, 1199-1200 (ist Cir. 1987); United States v. Villano,

529 F.2d 1046, 1061 (10th Cir.), cert. denied, 426 U.S. 953

(1976); United States v. Polizzi, 500 F.2d 856, 897 (9th

Cir. 1974), cert. denied, 419 U.S. 1120 (1975).

In this regard, the gravamen of a violation of 18 U.S.C.

1465 is the “knowing[ ] transport[ation] in interstate or

foreign commerce for the purpose of sale or distribution

[of] any obscene * * * film” (emphasis added). Section

1462(a), for its part, prohibits the “knowing[ ] use! } [of]

any express company or other common carrier * * * for

carriage in interstate * * * commerce [of] * * * any

obscene * * * motion-picture film” (emphasis added).

Nothing in either statute suggests that Congress intended

to make the unit of prosecution or punishment a course of

conduct involving the repetitive shipment of such mer-

chandise, rather than creating a punishable offense each

time a participant in such a scheme knowingly uses a com-

mon carrier to transport for resale any obscene film. in-

deed, the courts have repeatedly construed similar statutes

making it a crime to use interstate transportation or com-

munications facilities in aid of illicit activities to permit

prosecution and punishment of each use as a separate of-

fense. See United States v. Fermin Castillo, 829 F.2d at

1199-1200; United States v. Brown, 770 F.2d 768, 773 (9th

Cir.), cert. denied, 474 U.S. 1036 (1985); United States v.

Villano, 529 F.2d at 1061-1062; United States v. Polizzi,

500 F.2d at 897-898; see also United States v. Dawson, 790

F.2d 1565, 1568 & n.3 (11th Cir. 1986) (mail theft); United

17

States v. Dennison, 730 F.2d 1086, 1089 (7th Cir.) (stolen

credit cards), cert. denied, 469 U.S. 916 (1984). There is no

reason why this established doctrine should apply any dif-

ferently in the context of the obscenity laws.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOHN F. DE PUE

Altorney

DECEMBER 1987

9 Petitioner’s additional brief suggestion (Pet. 29) that this case in-

volves “governmental overreaching” of the sort that might violate due

process and bar conviction altogether (see United States v. Russell,

411 U.S. 423, 431-432 (1973)) was not raised below and is meritless.

The FBI’s conduct — placing three orders with a ready and willing sup-

plier of contraband who had already shipped similar materials to the

same area at the request of private parties —is hardly government con-

duct so shocking that a civilized society cannot tolerate it.

y: US. GOVERNMENT PRINTING OFFICE: 1987— 202-037/60138