Pinkus v. United States

• Decision Date: 23 May 1978
• Docket Number: No. 77-39,77-39
• Citation: 56 L.Ed.2d 293,98 S.Ct. 1808,436 U.S. 293
• Parties: William PINKUS, dba "Rosslyn News Company" and "Kamera," Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

436 U.S. 293

98 S.Ct. 1808

56 L.Ed.2d 293

William PINKUS, dba "Rosslyn News Company" and "Kamera," Petitioner,

v UNITED STATES.

No. 77-39.

Argued Feb. 28, 1978.

Decided May 23, 1978.

Syllabus

Petitioner was convicted of mailing obscene materials and advertising brochures for such materials in violation of 18 U.S.C. § 1461 (1976 ed.), and the Court of Appeals affirmed. Since the materials were mailed prior to 1973, he was tried under the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 rather than under those of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. He claims that the trial court's instructions to the jury were improper because they included children and sensitive persons within the definition of the community by whose standards obscenity was to be judged; charged that members of deviant sexual groups could be considered in determining whether the materials appealed to prurient interest in sex; and also charged that pandering could be considered in determining whether the materials were obscene. Held :

1. Children are not to be included as part of the "community" as that term relates to the "obscene materials" proscribed by § 1461, and hence it was error to instruct the jury that children are part of the relevant community. A jury conscientiously striving to define such community, the "average person," by whose standards obscenity is to be judged, might very well reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Pp. 296-298.

2. However, inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was not error. In the context of this case, the community includes all adults who compose it, and a jury can consider them all in determining the relevant community standards, the vice being in focusing upon the most susceptible or sensitive members rather than in merely including them, as the trial court did, along with all others in the community. Pp. 298-301.

3. Nor was the instruction as to devia t groups improper. Nothing prevents a court from giving an instruction on prurient appeal to such groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. Pp. 301-3035. 4. The pandering instruction, which permitted the jury to consider the touting descriptions in the advertising brochures, along with the materials themselves, to determine whether the materials were intended to appeal to the recipient's prurient interest in sex, i. e., whether they were "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg v. United States, 383 U.S. 463, 466, 86 S.Ct. 942, 945, 16 L.Ed.2d 31, was proper in light of the evidence. To aid a jury in determining whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. P. 303-304.

551 F.2d 1155, reversed and remanded.

Bernard A. Berkman, Cleveland, Ohio, for petitioner.

Jerome M. Feit, Washington, D. C., for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari in this case to decide whether the court's instructions in a trial for mailing obscene materials prior to 1973, and therefore tried under the Roth-Memoirs standards, could properly include children and sensitive persons within the definition of the community by whose standards obscenity is to be judged. We are also asked to determine whether the evidence supported a charge that members of deviant sexual groups may be considered in determining whether the materials appealed to prurient interest in sex; whether a charge of pandering was proper in light of the evidence; and whether comparison evidence proffered by petitioner should have been admitted on the issue of contemporary community standards.

Petitioner was convicted after a jury trial in United States District Court on 11 counts, charging that he had mailed obscene materials and advertising brochures for obscene materials in violation of 18 U.S.C. § 1461 (1976 ed.).¹ On appeal, his conviction was reversed on the grounds that the instructions to the jury defining obscenity had been cast under the standards established in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), although the offenses charged occurred in 1971 when the standards announced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and particularized in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), were applicable. Accordingly, the case was remanded to the District Court for a new trial under the standards controlling in 1971. No. 73-2900 (CA9 Feb. 5, 1975, rehearing denied May 13, 1975); see Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

On retrial in 1976, petitioner was again convicted on the same 11 counts. He was sentenced to terms of four years' imprisonment on each count, the terms to be served concurrently, and fined $500 on each count, for a total fine of $5,500. The Court of Appeals affirmed. 551 F.2d 1155 (CA9 1977).

I

The evidence presented by the Government in its case in chief consisted of materials mailed by the petitioner accompanied by a stipulation of facts which, among other things, recited that petitioner, knowing the contents of the mailings,² had "voluntarily and intentionally" used the mails on 11 occasions to deliver brochures illustrating sex books, maga- zines, and films, and to deliver a sex magazine (one count) and a sex film (one count), with the intention that these were for the personal use of the recipients. From the stipulation and the record, it appears undisputed that the recipients were adults who resided b th within and without the State of California. Because of the basis of our disposition of this case, it is unnecessary for us to review the contents of the exhibits in detail.

The defense consisted of expert testimony and surveys offered to demonstrate that the materials did not appeal to prurient interest, were not in conflict with community standards, and had redeeming social value. Two films were proffered by the defense for the stated purpose of demonstrating that comparable material had received wide box office acceptance, thus demonstrating that the materials covered by the indictment were not obscene and complied with community standards.

As a rebuttal witness, the Government presented an expert who testified as to what some of the exhibits depicted and that in his opinion they appealed to the prurient interest of the average person and to that of members of particular deviant groups.

II

In this Court, as in the Court of Appeals, petitioner challenges four parts of the jury instructions and the trial court's rejection of the comparison films.

A. Instruction as to Children

Petitioner challenges that part of the jury instruction which read:

"In determining community standards, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children, from all walks of life." (Emphasis added.)

The Court of Appeals concluded that the inclusion of children was "unnecessary" and that it would "prefer that children be excluded from the court's [jury] instruction until the Supreme Court clearly indicates that inclusion is proper." 551 F.2d, at 1158. It correctly noted that this Court had been ambivalent on this point, having sustained the conviction in Roth, supra, where the instruction included children, and having intimated later in Ginzburg v. United States, 383 U.S. 463, 465 n.3, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966), that it did not necessarily approve the inclusion of "children" as part of the community instruction.³

Reviewing the charge as a whole under the traditional standard of review, cogent arguments can be made that the inclusion of children was harmless error, see Hamling v. United States, 418 U.S. 87, 107, 94 S.Ct. 2887, 2902, 41 L.Ed.2d 590 (1974); however, the courts, the bar, and the public are entitled to greater clarity than is offered by the ambiguous comment in Ginzburg on this score. Since this is a federal prosecution under an Act of Congress, we elect to take this occasion to make clear that children are not to be included for these purposes as par of the "community" as that term relates to the "obscene materials" proscribed by 18 U.S.C. § 1461 (1976 ed.). Cf. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

Earlier in the same Term in which Roth was decided, the Court had reversed a conviction under a state statute which made criminal the dissemination of a book "found to have a potentially deleterious influence on youth." Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957). The statute was invalidated because its "incidence . . . is to reduce the adult population . . . to reading only what is fit for children." Ibid. The instruction given here, when read as a whole, did not have an effect so drastic as the Butler statute. But it may well be that a jury conscientiously striving to define the relevant community of persons, the "average person," Smith v. United States, 431 U.S. 291, 304, 97 S.Ct. 1756, 1765, 52 L.Ed.2d 324 (1977), by whose standards obscenity is to be judged would reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Cf. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). There was no evidence that children were the intended recipients of the materials at issue here, or that petitioner had reason to know children were likely to receive the materials. Indeed, an...