U.S. v. Easley, s. 90-5074

• Citation: 927 F.2d 1442
• Decision Date: 13 May 1991
• Docket Number: Nos. 90-5074,s. 90-5074
• Parties: UNITED STATES of America, Appellee, v. Robert Joe Garcia EASLEY, Jr., Appellant. UNITED STATES of America, Appellee, v. Jacquelyn L. HUNTER, Appellant. MN, 90-5075 MN.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1442

927 F.2d 1442

UNITED STATES of America, Appellee, v. Robert Joe Garcia EASLEY, Jr., Appellant.

UNITED STATES of America, Appellee, v. Jacquelyn L. HUNTER, Appellant.

Nos. 90-5074 MN, 90-5075 MN.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1990.

Decided March 21, 1991.

Rehearing and Rehearing En Banc

Denied May 13, 1991.

Arthur M. Schwartz, Denver, Colo., for appellant Easley.

John H. Weston, Beverly Hills, Cal., for appellant Hunter.

Thorwald Anderson, Minneapolis, Minn., for appellee.

Before ARNOLD and MAGILL, Circuit Judges, and BENSON, ^* Senior District Judge.

MAGILL, Circuit Judge.

Robert Easley, Jr., and Jacquelyn Hunter appeal their convictions for mailing obscene materials in violation of 18 U.S.C. Secs. 2, 1461 (1988). On appeal they challenge the district court's ¹ obscenity instructions, the facial validity of 18 U.S.C. Sec. 1461, and the government's prosecutions in general. We affirm.

I.

The appellants, Robert Easley, Jr., and Jacquelyn Hunter, were, respectively, the owner and manager of Diverse Industries, Inc., a California corporation. Diverse Industries was a mail order purveyor of sexually explicit videocassettes and magazines. ² Postal Inspector William Morris, responding to advertisements mailed by Diverse Industries, ordered various movies and magazines on four different occasions. Inspector Morris used a fake name and a post office box return address when ordering the items. Diverse Industries mailed the materials to Inspector Morris in Minnesota.

Based on the material in these four mailings, a grand jury indicted Hunter and Easley on four counts of violating 18 U.S.C. Secs. 2, 1461. ³ Specifically, they were indicted for aiding and abetting the mailing of nonmailable material on November 13, 1987; November 19, 1987; December 1, 1987; and March 18, 1988. The jury found Hunter and Easley guilty on all counts. Easley was sentenced to four concurrent twelve-month terms of imprisonment, three years of supervised release, a $30,200 fine, and 300 hours of community service. Hunter was sentenced to four concurrent four-month terms of imprisonment, two years of supervised release, a $200 special assessment, and 300 hours of community service.

II.

Easley and Hunter raise numerous issues in their consolidated appeals. For simplicity's sake, these issues are divided into three categories: challenges to the jury instructions on obscenity; a challenge to the facial validity of 18 U.S.C. Sec. 1461; and challenges to the government's prosecutions in general.

A. Jury Instructions

To address Easley's and Hunter's challenges to the jury instructions, it is necessary to first review briefly the analysis the factfinder uses to determine whether sexually explicit material is obscene: (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the average person, applying contemporary community standards, would find that the work depicts or describes, in a patently offensive way, specified sexual conduct; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24, 30, 93 S.Ct. 2607, 2615, 2618, 37 L.Ed.2d 419 (1973). Easley and Hunter argue that several of the district court's jury instructions concerning this analysis are erroneous.

1. Consenting Adults

Hunter first argues that the district court erred in excluding evidence that the materials were intended only for consenting adults and by instructing the jury to disregard any evidence to that effect. At trial, Hunter tried to present evidence that Diverse Industries' mailed advertisement, which Inspector Morris used to place his orders, was enclosed within a second, inner envelope that informed the recipient that sexually oriented material was inside. The government sought to exclude the evidence on the ground that it related to a "consenting adult defense," which the Supreme Court has expressly prohibited. See Paris Adult Theater I v. Slaton, 413 U.S. 49, 57, 93 S.Ct. 2628, 2635, 37 L.Ed.2d 446 (1973) ("We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only."). Hunter argues that the district court erred in accepting this argument because the evidence was not offered to establish the consenting adult defense, but to show that the ordered materials were not patently offensive.

Hunter argues that the envelope with the warning is relevant to patent offensiveness because the context in which sexually explicit material is presented may affect a juror's view of the offensiveness of the material. For example, Hunter argues, a person might find a sexually explicit billboard offensive, but might not find offensive the same scene in a movie viewed at home. Part of the context in this case, Hunter contends, is that the mailed materials were sent only to adults who wanted them.

Hunter makes the same argument with respect to the district court's instruction: "[I]t is not a defense to the crimes charged in the indictment that defendants may have sold these materials to adults who willingly purchased them, and it should not in any way be a part of your deliberation in this case " (emphasis added). Hunter contests the emphasized portion of the instruction, arguing that the district court, "by instructing the jury that it could not consider the fact of an consenting-adults-only audience ... allowed the jury to evaluate the 'patent offensiveness' question under a presumption of child or unwilling adult recipients." Appellant Hunter's Brief at 10.

The gist of Hunter's argument is that although the fact that sexually explicit materials were distributed to consenting adults is not a complete defense to an obscenity prosecution, it is a factor in determining whether the materials are patently offensive. The logical implication of this novel argument is that the district court erred in not allowing the jury to consider the circumstances of the materials' distribution.

In making this argument, Hunter relies principally on Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). Ginzburg involved the prosecution of a corporation and its owner for violating 18 U.S.C. Sec. 1461. The Supreme Court explicitly noted that to determine obscenity, normally only the allegedly obscene publications were necessary. 383 U.S. at 465, 86 S.Ct. at 944. In Ginzburg, however, the government had "charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene." Id. In response to the government's charge, the Court stated: "We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity...." Id. at 465-66, 86 S.Ct. at 944-45. The Court later stated: "We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material...." Id. at 474, 86 S.Ct. at 949.

In Hamling, the Supreme Court approved an instruction that informed the jurors that if they found the obscenity determination to be close, they could also consider "whether the materials had been pandered, by looking to their '[m]anner of distribution, circumstances of production, sale, ... [and] advertising.' " 418 U.S. at 130, 94 S.Ct. at 2914.

For a number of reasons, these cases do not support Hunter's argument that the district court erred by not allowing the jury to consider evidence that only consenting adults received the material. First, the Court has approved the use of evidence of "context" only when the government has alleged pandering. In this case, the government made no such claim. Furthermore, such context evidence has only been accepted as a sort of aggravating factor in the obscenity determination, and not as a mitigating factor, as Hunter asks us to hold. Second, even when approving the use of such evidence, the Court has stated only that it "may" or "could" be considered, not that it must be. Therefore, the fact that such evidence was not allowed is not a ground for reversal unless the district court abused its discretion. On the record before us, no such abuse exists. Finally, the Court has approved the use of such evidence only in "close" cases. Hunter does not argue that the obscenity determinations in this case were close ⁴ and we refuse to speculate on the issue. Therefore, the district court did not err in its instruction or in refusing to admit the evidence.

2. Accept or Tolerate

Hunter next argues that the trial court erroneously instructed the jury that patent offensiveness is to be measured by what the adult community will accept, rather than tolerate. The district court's instruction to the jury on patent offensiveness stated:

The second prong to be applied in determining whether material is obscene, is whether it depicts or describes sexual conduct in a patently offensive way. Examples of sexual conduct would include ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions or lewd exhibition of the genitals. In making this judgment, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the limits of what the adult community will accept as to be patently offensive.

Instruction 35 (emphasis added).

Hunter argues that the Supreme Court's decisions in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), and Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52...