U.S. v. Skinner, s. 93-5468

• Decision Date: 10 June 1994
• Docket Number: 93-5469,Nos. 93-5468,s. 93-5468
• Citation: 25 F.3d 1314
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney SKINNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1314

25 F.3d 1314

UNITED STATES of America, Plaintiff-Appellee, v. Rodney SKINNER, Defendant-Appellant.

Nos. 93-5468, 93-5469.

United States Court of Appeals, Sixth Circuit.

Argued March 14, 1994.

Decided June 10, 1994.

Dan Newsom, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Memphis, TN, and Daniel A. Clancy, Asst. U.S. Atty., Office of the U.S. Atty., Jackson, TN, for plaintiff-appellee.

Bradley J. Shafer (argued and briefed) and Daniel M. Zavadil, Shafer & Mansfield, Okemos, MI, for defendant-appellant.

Before: KEITH and BATCHELDER, Circuit Judges; and JOINER, Senior District Judge. ^*

KEITH, Circuit Judge.

Defendant-Appellant Rodney Skinner ("Skinner") appeals his conviction and sentence following a guilty plea to possession and distribution of obscene matter in violation of 18 U.S.C. Secs. 1466 and 2. Skinner argues Sec. 1466 contains an unconstitutional presumption and he also argues Sec. 1466 is unconstitutionally vague. First, because Skinner lacks standing to challenge the presumption, we decline to reach the merits of that allegation. Next, because we find the charging statute is not impermissibly vague, we AFFIRM Skinner's convictions.

I. Facts

In September 1989, a federal grand jury returned three separate indictments each charging Skinner, and others, with:

(1) engaging in the business of selling or transferring obscene matter in violation of 18 U.S.C. Sec. 1466; and

(2) aiding and abetting in the same, in violation of 18 U.S.C. Sec. 2.

In 1990, a jury trial commenced on the first indictment. The jury found Skinner, and two co-defendants, guilty of violating 18 U.S.C. Secs. 1466 and 2. The district court sentenced Skinner to eighteen months imprisonment and ordered restitution and a special assessment. In 1992, this court affirmed each defendant's conviction in an unpublished decision. See United States v. Ellwest Stereo Theatres of Memphis, Inc., No. 91-5208, slip op., 1992 WL 3690 (6th Cir. Jan. 10, 1992). The Supreme Court subsequently denied certiorari.

The government was prepared to prove the following undisputed facts in relation to the remaining two indictments. On September 14, 1989, Memphis police officers and federal agents visited two separate adult bookstores operated by Skinner and his co-defendants. At one bookstore, the officers purchased two identical copies of a video cassette tape entitled Calendar Girl Collection November Givings Vol. 11, and two identical copies of a video cassette tape entitled Excalibur Menage A Troix Vol. 11 at another bookstore. A jury subsequently adjudged these tapes obscene under the standards enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Additionally, the tapes were produced in California and transported to Tennessee. The government was also prepared to prove that the defendants possessed the tapes with intent to distribute them; did in fact sell the tapes to undercover police officers; and were engaged in the business of dealing in obscene material.

After the Supreme Court denied certiorari on the 1990 convictions, however, Skinner, and two co-defendants pled guilty to the charges within the remaining indictments. The same district judge who presided over Skinner's trial accepted his guilty plea and sentenced him to fifteen months imprisonment on each count, to run concurrent with each other and with the previously imposed sentence.

II. Discussion

On appeal, Skinner argues that Sec. 1466 is facially unconstitutional. ¹ First, Skinner argues the statute incorporates an unconstitutional rebuttable presumption which impermissibly shifts the burden of proof to the defendant. Next, he challenges language within the statute on vagueness grounds. We discuss each allegation below.

A. Skinner Lacks Standing to Challenge the Presumption

Skinner argues that the mandatory rebuttable presumption found in Sec. 1466 impermissibly shifts the burden of proof to the defendant. He notes that the district judge presiding over his 1990 jury trial expressed concern about the constitutionality of the presumption. In fact, because the statute appeared to create an impermissible mandatory presumption, the district judge instructed the jury as if it were a permissive inference. ² At his first appeal, Skinner challenged the constitutionality of the presumption. Because the jury instruction created a permissive inference, the prior panel declined to rule on the underlying constitutionality of the presumption. Skinner now argues because he pled guilty and no jury instructions were given, this panel should confront whether Sec. 1466 is unconstitutional as written. We disagree.

First, it is undisputed that on September 2, 1992, Skinner freely and voluntarily pled guilty to each indictment forming the basis for this appeal. A guilty plea serves as an "admission of all the elements of a formal criminal charge." See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Although it is well settled that a guilty plea does not waive the right of an accused to challenge the constitutionality of the statute under which he is convicted, ³ a defendant may not challenge the statute where the facts admitted by the guilty plea render the statute's alleged unconstitutionality moot as to the defendant. See Baxter v. Estelle, 614 F.2d 1030, 1036 (5th Cir.1980) cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1981). In Baxter, the Fifth Circuit declined to address the constitutionality of a presumption where a defendant pled guilty holding that:

[b]y entering a guilty plea, [the defendant] has admitted to all the elements of the offense, including the very fact to be presumed. Because of his admission, the state never made use of this presumption. [The defendant], therefore, has no standing to challenge its constitutionality.

Baxter, 614 F.2d at 1035-36 (emphasis added); see also United States v. Burke, 694 F.2d 632, 633-34 (9th Cir.1982) (guilty plea waived right to challenge statute where plea established all elements of the crime).

Here, Skinner does not dispute that he freely and voluntarily pled guilty to both indictments. Skinner's guilty plea eliminated all elements of proof including the fact to be presumed. Because the presumption was never utilized against Skinner, he lacks standing to challenge the presumption.

B. Vagueness Challenge

Next, Skinner argues Sec. 1466 is unconstitutionally vague. He specifically challenges the phrases "engaged in the business" and "as a regular course of trade or business." Close examination of Skinner's vagueness challenge reveals that he does not argue that the phrases "engaged in the business" and "as a regular course of trade or business" are vague per se. Instead, he argues the inclusion of the rebuttable presumption that an individual is "engaged in the business," if he offers for sale or transfers, "at one time, two or more copies of any obscene publication ... or obscene article, or a combined total of five or more such publications and articles" contributes to the vagueness of the statute.

Skinner alleges that the combination of the presumption and the two challenged phrases prevents lawful retailers from rebutting the presumption. Thus, Skinner does not attack the vagueness of the phrases; rather he attacks the definition of those phrases which results from Congress's inclusion of the presumption in the statute. Skinner also argues that Sec. 1466 raises special concerns because it regulates persons selling books, magazines and movies which, until adjudged obscene, are presumptively protected by the First Amendment. He argues the vagueness of the statute chills the sale of constitutionally protected materials. The Government argues first, that Skinner's guilty plea forecloses his vagueness challenge and second, that the statute is plain and unambiguous.

1. Standing

Although a guilty plea waives all non-jurisdictional defects and fact issues, a vagueness challenge is a jurisdictional defect. Thus, "following a guilty plea, a defendant could raise on appeal that he was prosecuted under an unconstitutional statute." Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Skinner, therefore, has standing to challenge the vagueness of the charging statute.

2. Skinner's Prior Appeal

Skinner previously raised his vagueness challenge within his first appeal and a prior panel found the statute was not vague. See United States v. Ellwest Stereo Theatres of Memphis, Inc., et al., No. 91-5208, slip op. at 2, 1992 WL 3690 (6th Cir. Jan. 10, 1992). In Ellwest, the panel stated:

This court has already considered, and rejected a challenge to the phrase "engaged in the business" in the context of dealing in firearms. See United States v. Day, 476 F.2d 562, 567 (6th Cir.1973). The same analysis applies with equal force in the context of the statute under consideration.

In addition, the "two sale" definition found in the statute ... unequivocally puts the public on notice of the level of activity that will support the drawing of an inference that an individual is engaged in the business of selling obscene material. While defendants may disagree with this standard, it is anything but vague.

Id. In Day, this court interpreted the pre-1986 amendment definition of "dealer" and stated:

Dealer ... means one that is engaged in any business of selling, repairing or pawning firearms and that business is that which occupies the time, attention and labor of the man for the purpose of livelihood or profit.

Day, 476 F.2d at 567. The panel then noted that although there was no statutory standard defining "engaged in the business," the aforementioned "judicial definition [was] an adequate reflection of the plain meaning of the phrase." Id.; see also United States v. Williams, 502 F.2d 581, 583 (8th Cir.1974) (quoting United States v. Gross, 313 F.Supp. 1330, 1333 (S.D.Ind.1970), aff'd, 451 F.2d 1355 (7th Cir.1971)) (holding ...