Hamling v. United States 8212 507, No. 73

CourtUnited States Supreme Court
Writing for the CourtREHNQUIST
Citation418 U.S. 87,41 L.Ed.2d 590,94 S.Ct. 2887
Decision Date24 June 1974
Docket NumberNo. 73
PartiesWilliam L. HAMLING et al., Petitioners, v. UNITED STATES. —507

418 U.S. 87
94 S.Ct. 2887
41 L.Ed.2d 590
William L. HAMLING et al., Petitioners,

v.

UNITED STATES.

No. 73—507.
Argued April 15, 1974.
Decided June 24, 1974.
Rehearing Denied Oct. 15, 1974.

See 419 U.S. 885, 95 S.Ct. 157.

Syllabus

Petitioners were convicted of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version (hereafter Illustrated Report) of an official report on obscenity, in violation of 18 U.S.C. §§ 2, 371, and 1461. The indictment under § 1461 charged petitioners in the language of the statute, which provides in pertinent part that obscene material and written information as to where it may be obtained is nonmailable and that '(w)hoever knowingly uses the mails for the mailing . . . of anything declared by this section . . . to be nonmailable . . .' commits a crime. The jury was unable to reach a verdict on the counts charging the mailing of the allegedly obscene Illustrated Report. Following affirmance of the convictions by the Court of Appeals, this Court decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and companion cases (hereafter collectively the Miller cases), after considering which, the Court of Appeals denied a petition for rehearing. Petitioners challenge their convictions based upon the pre-Miller obscenity test in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, and also as failing to meet the standards of the Miller cases; and challenge various procedural and evidentiary rulings of the District Court, as well as its instructions. Held:

1. Title 18 U.S.C. § 1461, 'applied according to the proper standard for judging obscenity, do(es) not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited,' Roth v. United States, 354 U.S. 476, 492, 77 S.Ct. 1304, 1313, 1 L.Ed.2d 1498. P. 98—99.

2. The jury's determination that the brochure was obscene was supported by the evidence and was consistent with the Memoirs obscenity formulation. P. 100.

3. The inability of the jury to reach a verdict on the counts charging distribution of the Illustrated Report had no relevance to its finding that the brochure was obscene, consistency in verdicts not being required, and the brochure being separable from the Illustrated Report. Pp. 100—101.

Page 88

4. The standards established in the Miller case do not, as applied to petitioners' pre-Miller conduct, require a reversal of their convictions. Pp. 101—117.

(a) Defendants like petitioners, who were convicted prior to the decisions in the Miller cases but whose convictions were on direct appeal at that time, should receive any benefit available to them from those decisions. Pp. 101—102.

(b) The instruction to the jury on the application of national community standards of obscenity was not constitutionally improper, since in rejecting the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform national standards, the Court in the Miller cases did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of the 'average person, applying contemporary community standards.' The Court's holding in Miller that California could constitutionally proscribe obscenity in terms of a 'statewide' standard did not mean that any such precise geographic area is required as a matter of constitutional law. Reversal is required in pre-Miller cases only where there is a probability that the excision of the references to the 'nation as a whole' in the instruction dealing with community standards would have materially affected the deliberations of the jury. Pp. 103—110.

(c) Construing 18 U.S.C. § 1461 as being limited to the sort of 'patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California,' the statute is not unconstitutionally vague, it being plain that the brochure is a form of hard-core pornography well within the permissibly proscribed depictions described in Miller. The enumeration of specific categories of obscene material in Miller did not purport to proscribe, for purposes of 18 U.S.C. § 1461, conduct that had not previously been thought criminal but instead added a 'clarifying gloss' to the prior construction, making the statute's meaning 'more definite.' Bouie v. City of Columbia. 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894. Pp. 110—116.

(d) Miller's rejection of Memoirs' 'social value' formulation did not mean that 18 U.S.C. § 1461 was unconstitutionally vague at the time of petitioners' convictions because it did not provide them with sufficient guidance as to the proper test of 'social value,' that formula having been rejected not for vagueness

Page 89

reasons but because it departed from Roth's obscenity definition and entailed a virtually impossible prosecutorial burden. Pp. 116 117.

5. The indictment was sufficiently definite. Pp. 117—119.

(a) The language of § 1461 was not 'too vague to support conviction for crime,' Roth v. United States, supra, 354 U.S., at 480, 77 S.Ct., at 1306. P. 117.

(b) The indictment gave petitioners adequate notice of the charges against them, since at the time petitioners were indicted the statutory term 'obscene,' a legal term of art and not a generic expression, had a definite legal meaning. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, distinguished. Pp. 117—119.

6. The District Court did not err in its instructions to the jury on scienter, including its instruction that '(petitioners') belief as to the obscenity or non-obscenity of the material is irrelevant,' it being constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of materials that he distributes, and that he knew the character and nature of the materials. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, followed; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, distinguished. Pp. 119—124.

7. The Court of Appeals correctly concluded that there was substantial evidence to support the jury's verdict. P. 124.

8. The District Court did not abuse its discretion in excluding allegedly comparable materials (materials with second-class mailing privileges, or judicially found to have been nonobscene, or available on newsstands), since, inter alia, expert testimony had been allowed on relevant community standards; and similar materials or judicial determinations with respect thereto do not necessarily prove nonobscenity of the materials the accused is charged with circulating; and with respect to whether proffered evidence is cumulative, clearly relevant, or confusing, the trial court has considerable latitude. Pp. 125—127.

9. The District Court's instruction that in deciding whether the predominant appeal of the brochure was to a prurient interest in sex the jury could consider whether some portions appealed to a specifically defined deviant group as well as to the average person was not erroneous, since in measuring prurient appeal, the jury (which was instructed that it must find that the material as a whole appealed generally to a prurient interest in sex) may consider the material's prurient appeal to clearly defined deviant sexual groups. Mishkin v. New York, 383 U.S. 502, 508—509, 86 S.Ct. 958, 963—964, 16 L.Ed.2d 56. Pp. 127—130.

Page 90

10. Since evidence of pandering can be relevant in determining obscenity, as long as the proper constitutional definition of obscenity is applied, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, it was not improper for the District Court to instruct the jury in connection with the Memoirs test that it could also consider whether the brochure had been pandered by looking to the manner of its distribution and editorial intent. Pp. 130—131.

11. The Court of Appeals did not err in refusing to reverse petitioners' convictions for the District Court's failure to comply with Fed.Rule Crim.Proc. 30 by denying petitioners' counsel's request to make additional objections to the instructions out of the presence of the jury, since this Court's independent examination of the record confirms the Court of Appeals' view that petitioners were not prejudiced thereby. Pp. 131—135.

12. Petitioners' argument that the District Court abused its discretion in refusing to grant a continuance until a new jury with a presumably greater ratio of young people could be drawn—it having been almost four years since the jury wheel had last been filled—is without merit, since there was no showing of a discriminatory exclusion of an identifiable group entitled to a group-based protection. Pp. 135—138.

13. The District Court's voir dire examination was sufficient to test the qualifications and competency of the prospective jurors and complied with Fed.Rule Crim.Proc. 24(a), and that court did not constitutionally err in not asking certain questions propounded by petitioners. Pp. 138—140.

481 F.2d 307, affirmed.

Stanley Fleishman, Hollywood, Cal., for petitioners Hamling and others.

Sam Rosenwein, Hollywood, Cal., for petitioners Kemp and others.

Allan A. Tuttle, Raleigh, N.C., for respondent.

Page 91

Mr. Justice REHNQUIST delivered the opinion of the Court.

On March 5, 1971, a grand jury in the United States District Court for the Southern District of California indicted petitioners William L. Hamling, Earl Kemp, Shirley R. Wright, David L. Thomas, Reed Enterprises, Inc., and Library Service, Inc., on 21 counts of an indictment charging use of the mails to carry an obscene book, The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave...

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3068 practice notes
  • U.S. v. Vega Molina, No. 03-1625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 19, 2005
    ...the appellants on fair notice of the interstate commerce element of the crimes charged in counts 1 and 2. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (holding that "[i]t is generally sufficient that an indictment set forth the offense in the words of......
  • Barber v. Ponte, No. 84-1750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 18, 1985
    ...persons with varying degrees of training and intelligence and varying economic and social positions."). 5 In Hamling v. United States, 418 U.S. 87, 137-38, 94 S.Ct. 2887, 2917-18, 41 L.Ed.2d 590 (1974), defendant alleged that the jury wheel filled from voter registration lists every four ye......
  • U.S. v. Bowker, No. 02-4086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 11, 2004
    ...an acquittal or conviction in bar of future prosecutions for the same offense." Maney, 226 F.3d at 663 (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States......
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...charge." The standard set forth by the Supreme Court for testing the sufficiency of an indictment was stated in Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 "(A)n indictment is sufficient if it, first, contains the elements of the offense charged and fairl......
  • Request a trial to view additional results
3046 cases
  • U.S. v. Vega Molina, No. 03-1625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 19, 2005
    ...the appellants on fair notice of the interstate commerce element of the crimes charged in counts 1 and 2. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (holding that "[i]t is generally sufficient that an indictment set forth the offense in the words of......
  • Barber v. Ponte, No. 84-1750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 18, 1985
    ...persons with varying degrees of training and intelligence and varying economic and social positions."). 5 In Hamling v. United States, 418 U.S. 87, 137-38, 94 S.Ct. 2887, 2917-18, 41 L.Ed.2d 590 (1974), defendant alleged that the jury wheel filled from voter registration lists every four ye......
  • U.S. v. Bowker, No. 02-4086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 11, 2004
    ...an acquittal or conviction in bar of future prosecutions for the same offense." Maney, 226 F.3d at 663 (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States......
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...charge." The standard set forth by the Supreme Court for testing the sufficiency of an indictment was stated in Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 "(A)n indictment is sufficient if it, first, contains the elements of the offense charged and fairl......
  • Request a trial to view additional results
2 books & journal articles
  • FEDERAL CRIMINAL CONSPIRACY
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...enable[] him to plead an acquittal or conviction in bar of future prosecutions for the sameoffense.” (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))); see also United States v. Laureano-Perez, 797 F.3d 45, 59 (1st Cir. 2015) (holding that the relevant indictment was suff‌icient ......
  • List of Cases Referenced
    • United States
    • Political Research Quarterly Nbr. 28-1, March 1975
    • March 1, 1975
    ...Inc., 94 S.Ct. 2997 (1974) Gilmore v. Montgomery, 94 S.Ct. 2416 (1974)Gustafson v. Florida, 414 U.S. 260 (1973)Hamling v. United States, 94 S.Ct. 2887 Harris v. New York, 401 U.S. 222 (1971) Hess v. Indiana, 414 U.S. 105 (1973)Jacobellis v. Ohio, 378 U.S. 184 (1964)Jenkins v. Georgia, 94 S.......

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