U.S. v. Cutting

• Decision Date: 16 June 1976
• Docket Number: No. 71-2570,71-2570
• Citation: 538 F.2d 835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Dennis CUTTING and Barry Daniel Still, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 835

538 F.2d 835

UNITED STATES of America, Plaintiff-Appellee, v. Carl Dennis CUTTING and Barry Daniel Still, Defendants-Appellants.

No. 71-2570.

United States Court of Appeals Ninth Circuit.

June 16, 1976.

Burton C. Jacobson (argued), Beverly Hills, Cal., for defendants-appellants.

W. Michael Mayock, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

TRASK, Circuit Judge:

Cutting and Still appeal their convictions, following jury verdicts of guilty, for mailing obscene matter and for mailing advertisements for obscene matter in violation of 18 U.S.C. § 1461. Cutting was convicted on 12 separate counts; Still was convicted on 11. Each was fined separately on each count, and each was given concurrent sentences of three years' probation on all counts of which he was convicted.

I.

The material involved here concerns sample photographs with some description, two advertisements (counts 14 and 15) containing printed material but unaccompanied by photographs, and one reel of motion picture film. Cutting's convictions on five counts involving still photographs (counts 10, 11, 12 and 13) and count 20, the motion picture film, were based on material that can be described as "hardcore pornography." See Ginzberg v. United States, 383 U.S. 463, 499, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (Stewart, J., dissenting). The material variously depicts, in explicit detail, acts of sexual intercourse, including fellatio and cunnilingus. See Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The remaining material consisted of still photographs of nude females in various frontal postures with legs spread apart and the camera focused upon the genitals. The written material accompanying the photographs made no pretense of representing that they were for any serious artistic, scientific, or literary purpose.

In instructing the jury, the district court told its members that the community to be applied was the national community as a whole. No objection was made to these instructions. Neither side introduced any expert testimony concerning the availability or acceptability of the materials alleged to be obscene at either the national or local levels. The photographs, films, and advertisements were before the jury. Expert testimony is not necessary to enable the jury to judge the obscenity of material which has been placed in evidence before them. See Hamling v. United States, 418 U.S. 102, 113, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 120-22, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). The jury examined the evidence and returned verdicts of guilty on all counts.

The acts underlying the indictment and trial took place before the 1973 and 1974 obscenity decisions of the Supreme Court of the United States. Appellants are therefore entitled to have their convictions measured against the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 976, 16 L.Ed.2d 1 (1966), unless they would benefit by application of the Supreme Court's more recent decisions. Hamling v. United States, 418 U.S. 87, 102, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974). It is a general rule that a change in the law which has occurred after a relevant event in a case will be given effect while the case is on direct appeal. Hamling v. United States, supra, 418 U.S. at 102, 94 S.Ct. 2887, Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). That rule applies here, and thus the judgments of conviction also must be substantively examined in the light of the principles laid down in the more recent cases. Hamling v. United States, supra, 418 U.S. at 102, 94 S.Ct. 2887.

Both the Memoirs test, ¹ Memoirs v. Massachusetts, supra at 418, and the Miller test, ² Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. 2607, in the second portion of their tripartite tests, proscribe sexual material which is "patently offensive." In Miller, the Court took occasion to give examples of what it meant by "patently offensive":

"It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra :

"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

"(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." ³ Miller v. California, supra at 25, 93 S.Ct. at 2615.

The Court in Hamling v. United States, supra, 418 U.S. at 115, 94 S.Ct. at 2906, said of the material there,

"It is plain from the Court of Appeals' description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover." (Emphasis added.)

Thus, the Court in Hamling defined for purposes of section 1461 what constitutes hard-core pornography and found that it is made up in part at least by the examples listed in Miller.

To the argument made in Hamling that because the crime for which convictions had been obtained had not been enumerated in the statute at the time of their conduct, the convictions could not be sustained, the Court responded:

"But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal." Hamling v. United States, supra 418 U.S., at 116, 94 S.Ct., at 2907.

The Hamling Court, supra at 114, 94 S.Ct., at 2906, to the same effect also said:

"As noted above, we indicated in United States v. 12 200-ft. Reels of Film, supra, 413 U.S. (123), at 130 n. 7, 93 S.Ct. (2665), at 2670 (37 L.Ed.2d 500 (1973)) that we were prepared to construe the generic terms in 18 U.S.C. § 1462 to be limited to the sort of 'patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California.' We now so construe the companion provision in 18 U.S.C. § 1461, the substantive statute under which this prosecution was brought."

II.

It is for this court to determine whether the jury could constitutionally find the materials obscene, in light of the tests enumerated by the Supreme Court as well as the examples of patently offensive materials listed in Miller v. California. Hamling v. United States, supra, 418 U.S. at 100, 94 S.Ct. 2887. What appeals to the prurient interest and is patently offensive are essentially questions of fact, Miller v. California, supra, 413 U.S. at 30, 93 S.Ct. 2607; the issue of obscenity must, in the first instance, be left to the trier of fact, be it a properly instructed jury or a trial judge.

"The general rule of application is that '(t)he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.' Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)." Hamling v. United States, supra, 418 U.S. at 124, 94 S.Ct. at 2911.

But if it appears that the verdict is not supported by substantial evidence, a reviewing court has an obligation to set that verdict aside if the finding be one of obscenity. See Jacobellis v. Ohio, 378 U.S. 184, 190 & n. 6, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Brennan, J.). There is a limit beyond which a jury may not go in determining that certain materials are obscene. See Hamling v. United States, supra, 418 U.S. at 114, 94 S.Ct. 2887. A jury in an obscenity case may not act upon considerations of passion and prejudice and in disregard of the court's instructions any more than it could in other fields of law.

In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), a jury was instructed on obscenity under a Georgia statute in language substantially similar to the definition used in Memoirs. See note 1 supra. The material under question was the movie film, "Carnal Knowledge." There was substantial evidence of the quality of the film from an artistic standpoint, yet the jury found it to be obscene, and the Supreme Court of Georgia affirmed by a divided court. On appeal to the Supreme Court, probable jurisdiction was noted, 414 U.S. 1090, 94 S.Ct. 719, 38 L.Ed.2d 547 (1973), the conviction reviewed, and the judgment reversed. The Court pointed out that while questions of appeal to the " 'prurient interest' " or of "patent offensiveness" are " 'essentially questions of fact,' " juries do not have "unbriddled discretion" to make their own determination of what is " 'patently offensive.' " ⁴ 418 U.S. at 160, 94 S.Ct. 2887. The Court then pointed out that there was nothing in the film which under the Miller standards and illustrations could be said to meet those requirements.

"While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including 'ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards." Id. at 161, 94 S.Ct. at 2755.

The photographs in this proceeding do not fall within the description of the artistic material in Jenkins. Five counts involve explicit sex. There is no story line or theme to the film and no perceivable artistic value to the film or the four...