U.S. v. Blucher, 77-1065

• Decision Date: 05 September 1978
• Docket Number: No. 77-1065,77-1065
• Citation: 581 F.2d 244
• Parties: 4 Media L. Rep. 1172 UNITED STATES of America, Plaintiff-Appellee, v. Gerald L. BLUCHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 244

581 F.2d 244

4 Media L. Rep. 1172

UNITED STATES of America, Plaintiff-Appellee, v. Gerald L. BLUCHER, Defendant-Appellant.

No. 77-1065.

United States Court of Appeals Tenth Circuit.

Argued March 17, 1978.

Decided July 31, 1978.

Rehearing Denied Sept. 5, 1978.

Donald J. Sullivan, Cheyenne, Wyo., for defendant-appellant.

Lawrence A. Bobbitt, III, Asst. U. S. Atty., Cheyenne, Wyo. (Toshiro Suyematsu, U. S. Atty., and Frederic C. Reed, Asst. U. S. Atty., Cheyenne, Wyo., on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Dissenting in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), Mr. Justice Brennan expressed the foreboding that:

The 1958 amendments to § 1461 constituted the mailing of obscene matter a continuing offense under 18 U.S.C. § 3237. The practical effect of this amendment intentionally adopted by Congress for that express purpose is to permit prosecution "in the Federal district in which (the disseminator) mailed the obscenity, in the Federal district in which the obscenity was received, or in any Federal district through which the obscenity passed while it was on its route through the mails." . . . Under today's "local" standards construction, therefore, the guilt or innocence of distributors of identical materials mailed from the same locale can now turn on the chancy course of transit or place of delivery of the materials. See United States v. Palladino, 490 F.2d 499, 503 (CA1 1974) (Coffin, C. J.). National distributors choosing to send their products in interstate travels will be forced to cope with the community standards of every hamlet into which their goods may wander. Because these variegated standards are impossible to discern, national distributors, fearful of risking the expense and difficulty of defending against prosecution in any of several remote communities, must inevitably be led to retreat to debilitating self-censorship that abridges the First Amendment rights of the people. For it "would tend to restrict the public's access to forms (of sexually oriented materials) which the (United States) could not constitutionally suppress directly . . . a censorship . . . hardly less virulent for being privately administered(, for) (t)hrough it, the distribution of all (sexually oriented materials), both obscene and not obscene, would be impeded." Smith v. California, 361 U.S. 147, 154 (80 S.Ct. 215, 4 L.Ed.2d 205) (1959). Thus, the people of many communities will be "protected" far beyond government's constitutional power to deny them access to sexually oriented materials. A construction that has such consequences necessarily renders the constitutionality of amended § 1461 facially suspect under the First Amendment.

Id. at 143-45, 94 S.Ct. at 2920-2921 (Brennan, J., dissenting).

The case we have before us today illustrates that the foreboding has turned to reality. ¹ The defendant distributor of published materials resided in Oregon, a state where the "community standard" seems more tolerant of varying personal habits than most. ² The record does not reflect that defendant ever resided, traveled through, or had any business contacts in the State of Wyoming prior to the time when an Oregon postmaster asked a Wyoming postmaster to use a false name and address to solicit by mail materials distributed by defendant. This communication between postmasters was made for no apparent reason other than a subjective judgment that a Wyoming venire would hold a more restrictive "community standard." ³ Defendant willingly responded to the mail order requests of Wyoming postal officials. On 17 occasions over a three year period, he mailed advertisements giving information where, how, and from whom allegedly obscene materials could be obtained. On three occasions in the same time period he mailed such materials.

Defendant's only contacts with the State of Wyoming were those initiated and pursued by Federal postal authorities in Wyoming. Based solely on these contacts, defendant was indicted on 20 counts of violations of 18 U.S.C. § 1461 (1976) in an action brought in Wyoming Federal District Court. Facing the prospect of prosecution before a Wyoming jury on all 20 counts under Wyoming community standards of obscenity, defendant pleaded guilty to one count and reserved an appeal on the legality of this prosecution. The government dismissed the remaining 19 counts.

On appeal defendant complains that the liberal venue provisions of 18 U.S.C. § 3237 (1976) compounded by the application of local obscenity standards under Hamling deprive him of due process. Yet, so long as Hamling is the law, ⁴ publishers and distributors everywhere ⁵ who are willing to fill subscriptions nationwide are subject to the creative zeal of federal enforcement officers who are free both to shop for the venue from which juries with the most restrictive views are likely to be impanelled and to select for prosecution the materials, publishers and distributors which their subjective judgment dictates.

AFFIRMED.

WILLIAM E. DOYLE, Circuit Judge, concurs in the result.

1 See United States v. Dost, 575 F.2d 1303 (10th Cir. 1978), where the same enforcement and venue shopping technique was used to elect New Mexico substantive law over California law on obscenity.

2 For example, Oregon is one of only a handful of states which have decriminalized the possession and use of small quantities of marijuana. 1977 Or.Laws ch. 745, § 54 repealed Or.Rev.Stat. §§ 167.207(3)...