U.S. v. Hill

• Decision Date: 11 September 1974
• Docket Number: No. 73-2922,73-2922
• Citation: 500 F.2d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. James Norman HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 733

500 F.2d 733

UNITED STATES of America, Plaintiff-Appellee. v. James Norman HILL, Defendant-Appellant.

No. 73-2922.

United States Court of Appeals, Fifth Circuit.

Sept. 11, 1974, Rehearing and Rehearing En Banc Denied Nov. 1, 1974.

Joel Hirschhorn, Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Robert N. Reynolds, Asst. U.S. Atty., Miami, Fla., Robert D. Keefe, Dept. of Justice, Crim. Div., Government Regulations Section, Washington, D.C., for plaintiff-appellee.

Before MOORE, ^* AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

On February 22, 1973, agents for the Federal Bureau of Investigation, acting on a tip from an informer, arrested James Norman Hill in the Miami International Airport. Immediately prior to his arrest, Hill had deplaned from a Califoria flight and had claimed his 'baggage,' which contained 623 reels of 8mm non-sound color motion picture film depicting a variety of explicit sexual acts. When the grand jury returned its two count indictment against Hill for violations of 18 U.S.C.A. 1462 ¹ and 1465 ² on May 3, 1973, the Supreme Court had not yet announced its decisions in the Miller group of obscenity cases, ³ so that the Roth-Memoirs ⁴ test still prevailed. The attorneys in the instant case, however, agreed to postpone Hill's jury trial until the Supreme Court decided the pending Miller cases. With instructions that incorporated the language of the Miller decisions, the jury found Hill guilty as to both counts of the indictment. After ruling on the obscenity vel non of the films, the District Court adjudged Hill guilty and sentenced him to three years confinement on each count, to run concurrently, and fined him $10,000, $5,000 on each count. We affirm.

On appeal, Hill presents several grounds for the reversal of his conviction. The most significant legal argument which Hill advances is his contention that he was constitutionally entitled to be tried under the Roth-Memoirs standard of obscenity and that the trial court, by basing its instructions on the Miller test, subjected him to an ex post facto application of the law prohibited by Article I, Section 9 of the United States Constitution and deprived him of due process of law under the Fifth Amendment.

In handling the post-Miller appeals of federal obscenity convictions where the trial was held under the Roth-Memoirs test, this Court has reviewed the materials under both the Roth-Memoirs and the Miller standards to assure defendants of the benefit of both tests as a matter of constitutional review. United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), cert. denied, U.S. , 94 S.Ct. 3222, 41 L.Ed.2d 1170 (No. 73-1075, July 25) (1974). This Court, however, has not decided the question of whether a defendant, arrested and indicted under the Roth-Memoirs standard, is subjected to an ex post facto application of the law and deprived of due process of law when the jury is instructed to judge the factual content of the material under the Miller test. We find, however, that we do not have to decide whether a charge based solely on the language in Miller would require a reversal of Hill's conviction because we view the instructions as sufficient under both tests.

The defendant argues that the two standards are enunciated as follows:

The Roth-Memoirs Standard:

1. Dominant theme of material taken as a whole appeals to the prurient interest in sex; 2. The material is patently offensive because it affronts contemporary community standards relating to the representation of sexual matters; and 3. The material is utterly without redeeming social value.

The Miller Standard:

1. Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest in sex; 2. Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable law; and 3. Whether the material lacks serious literary, artistic, political or scientific value.

Assuming without deciding that something other than the varying semantics of different words to articulate the same idea is involved in the Miller decision and that it does articulate a standard different than Roth by which a jury could reach different conclusions on the material involved in this case, an examination on the charge to the jury reveals that the defendant was given the benefit of both standards. Although the Court first instructed the jury that the test of whether the material was obscene depended on the existence of the three elements of the Miller standard, it then went on to satisfactorily, we think, instruct the jury as to the social value element found in Roth-Memoirs. The Court said:

Freedom of expression is fundamental to our society and has contributed much to the development and wellbeing of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly, so long as the expression does not fall within the area of obscenity. However, the constitutional right to free expression does not extend to the expression of that which is obscene.

Furthermore, obscenity is excluded from constitutional protection because it is without social value. Of course, the mere fact that material deals with sex does not mean that it cannot have value to society. Indeed, such material can have social importance if it portrays sex in a manner that advocates ideas or that has literary, scientific or artistic value. It is for you to determine whether the materials at issue in this case are of value to society.

Although the Court did not use the words 'utterly without redeeming social value' as expressed in Memoirs, we do not deem it necessary that a jury instruction recite the precise words of judicial opinions in order to convey the ideas therein expressed. Defendant would have us hold that the law is revealed to the jury by some magical incantation of the exact words of a legal opinion, and anything short of that is reversible error. We think the above passage of the Court's charge, read with the instructions as a whole, was sufficient to inform the jury that they should not convict the defendant if they found the materials to be of any social value.

The precise effect of the Court's instructions to the jury in the instant case was to secure for the defendant the same protection at trial as to the facts which a Thevis review by this Court affords him on appeal as a constitutional matter. By charging the jury under both the Miller and the Roth-Memoirs tests of obscenity, the District Court gave the defendant the benefit of both standards. We need not involve ourselves in the controversy over whether the materials should be judged under a local, state, or national standard. The materials here are not constitutionally protected under any standard. The defendant requested that the jury be instructed that its judgment should be based on a state standard, such an instruction was given, and the defendant cannot now assert any error in this regard.

Although the point was not argued to us, we have determined on a review of the materials that they are not constitutionally protected under either the Roth-Memoirs standard or the Miller standard. United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), cert. denied, U.S. , 94 S.Ct. 3222, 41 L.Ed.2d 1170 (No. 73-1075, July 25) (1974). The several films not being the subject of individual counts, the unprotected obscenity of any one of them would be sufficient to support the conviction.

The rest of the points raised on appeal have either been decided contrary to the defendant's position in controlling cases of this Court or the Supreme Court, or a review of the record reveals them to be without merit. We decide each point in the order in which it was asserted by defendant.

The defendant complains that the failure to add to the master jury wheel the names of newly registered voters since 1968 or 1969 occasioned the systematic exclusion of potential veniremen of certain 'cognizable groups,' namely young adults between the ages of 21 and 25 years and newly arrived Latin Americans. This argument falls under previous decisions of this Court, United States v. Pentado, 463 F.2d 355 (5th Cir.), cert. denied, Ocha v. United States, 409 U.S. 1079, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972); Noa v. United States, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973), and United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971), the authority of which has now been bolstered by the recent Supreme Court decision in Hamling v. United States, U.S. , 94 S.Ct. 2887, 41 L.Ed.2d 590 (No. 73-507, June 24) (1974).

Faced with a similar argument in Hamling, the Supreme Court said:

Congress could reasonably adopt procedures which, while designed to assure that 'an impartial jury is drawn from a cross-section of the community,' Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), at the same time take into account practical problems in judicial administration. Unless we were to require the daily refilling of the jury wheel, Congress may necessarily conclude that some periodic delay in updating the wheel is reasonable to permit the orderly administration of justice. Invariably of course, as time goes on, the jury wheel will be more and more out of date, especially near the end of the statutorily prescribed time period for updating the wheel. But if the jury wheel is not discriminatory when completely updated at the time of each refilling, a prohibited 'purposeful discrimination' does not arise near the end of the period simply because the young and other persons have belatedly become eligible for jury service by becoming registered voters. Whitus v. Georgia, 385 U.S. 545, 551, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); see Avery v....