U.S. v. Hurt
| Decision Date | 25 July 1986 |
| Docket Number | No. 85-3058,85-3058 |
| Parties | 21 Fed. R. Evid. Serv. 249 UNITED STATES of America, Plaintiff-Appellee, v. Lasco Lavaun HURT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert C. Weaver, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
John S. Ransom, Ransom, Blackman & Simson, Portland, Or., for defendant-appellant.
Appeal from the United States District Court for the District of Oregon.
Before FLETCHER, ALARCON, and WIGGINS, Circuit Judges.
Lasco Lavaun Hurt (hereinafter Hurt) appeals from a conviction of two counts of violation of 18 U.S.C. Sec. 2 and Sec. 1461 for use of the mails for the delivery of two packages containing nonmailable obscene materials.
Hurt seeks reversal on the following grounds.
One. Section 1461 does not apply to persons who use the mail to order and receive obscene materials.
Two. Section 1461 of Title 18 is unconstitutional as applied to him.
Three. The district court erred in denying his motion to suppress the physical evidence seized in his home pursuant to a search warrant that failed to describe with particularity the items to be seized.
Four. The district court erred in admitting into evidence other allegedly obscene material to prove the defendant's knowledge of the nature of the films he ordered and received through the mails.
Five. The evidence was insufficient to prove that he knew the nature and contents of the films he ordered and received in the mail.
Six. The district court erred in imposing consecutive sentences because the evidence showed that he committed only the offense of using the mails to send a single order for three obscene films that were received simultaneously in two separate packages.
We reject each of Hurt's contentions concerning the judgment entered regarding Count One. We reverse Count Two as a violation of the rule against multiple sentences for a single offense.
The evidence in this case consisted of the testimony of a customs officer and a postal inspector and materials seized at Hurt's home. No defense evidence was offered.
On or about September 1, 1983, Hurt mailed an order form to Alex Smit, Post Office Box 705, Stockholm, Sweden in which he requested that three films be sent to him. The films were paid for by a money order in the amount $476.06 made payable to Alex Smit. The instructions for the ordering of Smit films requested that the title not be set forth on the order form. Instead, the consumer was directed to place an "X" in the appropriate box.
In response to this order, Smit mailed three films to Hurt in two separate packages. The customs declarations on one package stated it contained a name plate. In fact, it contained one film entitled "First Suck," and another entitled "Young Girl." The second package bore a customs declaration identifying the contents as a tablecloth. Instead, it contained a film entitled "Dick, Billy, and Mike." The films in the packages were not on reels. These packages were inspected on December 7, 1983, at the international mail facility in Oakland, California, by United States Customs mail technicians. Each film depicted children engaged in sexually explicit conduct.
The packages were forwarded by government officials to the United States Customs Service in Portland, Oregon. There, the packages were again inspected by United States Postal Inspector Robert Luttrell. A search warrant was obtained to search Hurt's residence based upon the obscene content of the three films. The warrant authorized the seizure of the films after their delivery to Hurt. The warrant also permitted the seizure of any other materials depicting minors engaged in sexually explicit conduct and "[c]orrespondence, and records of any kind reflecting the ordering, receipt, shipping, and payment for child pornography."
On December 21, 1983, Postal Inspector Luttrell gave the packages to a mail carrier who delivered them to Hurt's residence. Thirty minutes later, Postal Inspector Luttrell and eight or nine law enforcement officers entered the Hurt residence pursuant to the search warrant. As soon as the officers entered, Special Agent Daniel Nafziger advised Hurt of his right to remain silent and his right to counsel. The parties stipulated that this admonition complied with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hurt advised the officers that he understood his rights. Special Agent Nafziger asked Hurt if he recognized the officer from a previous interview concerning the subject of pornography. Hurt told the officer that the materials they were probably looking for were on the coffee table. The sexually explicit films delivered by the mail carrier were on the coffee table. The film was unreeled.
Special Agent Nafziger then asked Hurt where he kept his pornography. The parties stipulated that Hurt took the officers to his bedroom and opened a closet which contained approximately eighteen films, albums, and books depicting or describing minors engaged in sexually explicit conduct. The officers also found a gray file box which contained a money order receipt. Hurt told the officers that he had used the money order to obtain the films delivered that day. The officers found the mail wrappers for the two packages of Smit films in a trash burner in the kitchen. A search of the premises revealed a photo album containing pictures of children engaged in sex acts with other children and adults. The officers also found two publications that contained photographs of minors engaged in sex acts with adults. The officers also discovered a film in a closet in the bedroom depicting a minor engaging in sex acts with a dog and an adult male. The search also revealed several brochures advertising publications which depict children engaging in sexually explicit conduct. One was entitled "Teenager."
The officers also located an Alex Smit ordering brochure that contained a list of blocks with numbers. The officers did not discover any brochure that contained the names of the films that corresponded to the numbers on the order form.
On July 17, 1984, Hurt was charged in two counts with "knowingly us[ing] the United States Mails for the mailing, carriage in the mails and delivery of nonmailable matter" depicting children engaged in obscene conduct in violation of 18 U.S.C. Sec. 1461 (1984) and 18 U.S.C. Sec. 2 (1984). Hurt waived trial by jury. He was convicted as charged. The district judge found as a fact that the "defendant knew full well the pornographic character of that which he ordered from Amsterdam." He also found, after viewing the films in question, that they met the standards for obscenity as set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1972). He was given consecutive sentences.
Hurt claims that the district court erred in denying his motion to dismiss the indictment. He argues that section 1461 does The denial of a motion to dismiss an indictment is reviewed for abuse of discretion. United States v. Moore, 653 F.2d 384, 389 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 680, 70 L.Ed.2d 646 (1981). A trial court does not have the discretion to misapply the law. If the district court's ruling is based on its construction of a statute, we are required to make an independent or de novo interpretation of the applicable law. United States v. Louisiana Pacific Corp., 754 F.2d 1445, 1447 (9th Cir.1985); see also United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
not apply to the recipient of obscene materials. 1
Hurt was indicted under that portion of section 1461 that provides in pertinent part as follows:
Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section ... to be nonmailable ... shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned no more than ten years, or both, for each such offense thereafter.
The language "whoever knowingly uses the mails" in section 1461 does not limit prosecution to a person who uses the mails to send obscene materials to another. The language of the statute is broad enough to include persons who use the mails to order the delivery of obscene materials. Hurt does not argue that a person who uses the mails to order the delivery of sexually explicit material is not included within the plain meaning of the words "whoever knowingly uses the mails." Instead, he contends that Congress enacted section 1461 solely "to penalize the sender of such material." He relies on the opinion of the district court in United States v. Sidelko, 248 F.Supp. 813 (M.D.Pa.1965) to support his argument that we must disregard the expansive sweep of the language used by Congress. We decline to adopt the holding in Sidelko because the district court in that matter failed to apply the appropriate rules of legislative construction.
In Sidelko, as here, the defendant was accused of using the mails to order obscene materials. The district court granted the defendant's motion for a judgment of acquittal The method used by the court in Sidelko to interpret the language used by Congress is contrary to traditional rules of legislative construction and more recent decisions of the United States Supreme Court and the law of this circuit.
on the ground that section 1461 does not apply to the recipient of obscene matter through the mails. The district court in Sidelko noted that prior to 1958, punishment under section 1461 was limited to a person who "knowingly deposits for mailing or delivery" nonmailable material. In 1958, however, the...To continue reading
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