U.S. v. Thomas

• Decision Date: 14 January 1980
• Docket Number: No. 78-1766,78-1766
• Citation: 613 F.2d 787
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Edward THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 787

613 F.2d 787

UNITED STATES of America, Plaintiff-Appellee, v. David Edward THOMAS, Defendant-Appellant.

No. 78-1766.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 12, 1979.

Decided Jan. 14, 1980.

Stephen M. Munsinger, Sp. Asst. U. S. Atty., Denver, Colo., Joseph F. Dolan, U. S. Atty., Denver, Colo., for plaintiff-appellee.

Anthony L. Worth, Denver, Colo. (Charles F. Murray, Denver, Colo., on the brief), for defendant-appellant.

Before HOLLOWAY and DOYLE, Circuit Judges and BOHANON, District Judge. ^*

BOHANON, District Judge.

David Edward Thomas appeals convictions on 21 counts of causing obscene materials to be mailed in violation of 18 U.S.C. § 1461.

In January, 1977, following the failure of the United Parcel Service (UPS) to locate the addressee of a certain package sent from Colorado to California, the package was returned to Colorado but also found undeliverable to the return address. When inadvertently broken open during sorting, the package was found to contain what UPS employees perceived to be "sexually oriented materials." Following their notification, FBI agents visited the UPS facility, examined the parcel, and determined that it contained, Inter alia, two rolls of 8mm film, a catalog and approximately 150 envelopes with checks and order blanks, pre-addressed to Amida-Euro (A&E) in Denver, Colorado. A&E's listed address was later determined to be that of the Academy Answering Service (the Academy), which was hired by A&E to receive and forward mail. Inquiries at the Academy supported by a subpoena and search warrants led to information which incriminated appellant David E. Thomas.

Appellant contends that the trial court erred:

(1) in failing to grant a pretrial motion to suppress evidence obtained at the Academy through search warrants issued without any judicial determination of obscenity (2) in defining the relevant "contemporary community standard" as being that of the Denver metropolitan area;

(3) in not granting appellant's motion to suppress all evidence resulting from the FBI's warrantless seizure of the original package;

(4) in not ruling as a matter of law that 18 U.S.C. § 1461 failed to delineate an offense applicable to appellant;

(5) in failing to properly voir dire the jury as to their understanding of the prurient interests of certain deviant sexual groups;

(6) in failing to require expert testimony on the prurient interests of those deviant sexual groups.

For purposes of adjudging materials obscene under federal law, the trier of fact must determine: (a) that the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) that the work depicts or describes sexual conduct in a patently offensive way; ¹ and (c) that the work, taken as a whole, lacks serious literary, artistic, political and scientific value. Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. 2607; Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

Relying on the case of United States v. Tupler, 564 F.2d 1294 (9th Cir. 1977), appellant argues that two search warrants were issued illegally in this case without a "prior judicial determination of probable obscenity." In Tupler, the court struck down a search warrant used to seize certain allegedly obscene films, stating at 1297-1298:

"First Amendment protection of allegedly obscene material includes the requirement that no seizure warrant be issued without a procedure 'designed to focus searchingly upon the question of obscenity.'

A searching focus on obscenity requires the issuing judge or magistrate to base his evaluation of probable cause on direct evidence of the contents of at least a fair sample of the material itself.

Because the films were seized without an examination of their contents, the defendants' motion to suppress them should have been granted."

Judge Sneed's concurring opinion in Tupler agreed that the warrant lacked probable cause, but disagreed that prior judicial examination of the film was required. He stressed that a warrant should be upheld where its supporting affidavit relates legally sufficient observations by the officer, concluding: "The fundamental issue is whether there exists probable cause to believe the material obscene." Tupler, supra at 1298. We agree. See Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).

The rule in this circuit allows a warrant to be issued without prior judicial review of the film where probable cause results from the affidavit's description of the film's contents. United States v. Christian, 549 F.2d 1369 (10th Cir. 1977). In Christian, supra, at 1371 the court stated: "Judged by any judicial standards, the sexual activities explicitly described in the officer's affidavit were 'hard core' pornography, obscene, and constituted probable cause for the issuance of the warrant."

The affidavit underlying the first search warrant herein contained a description of the circumstances attending the FBI's examination of the package at UPS, a description of the contents thereof, ² and the following facts, Inter alia. A&E's advertised address was actually that of the Academy Answering Service, a telephone and mailing service. Academy records revealed appellant to be the individual doing business as A&E, with a forwarding address at that time in Burbank, California. Mail previously directed to A&E via Academy, whose contents had been inadvertently observed by Academy employees, involved pornographic literature offerings by appellant. At the time the first warrant was sought, Academy possessed four packages addressed to A&E and intended for delivery to appellant.

The affidavit also related conversations wherein the affiant, an FBI agent, was advised by persons acquainted with appellant that he was in the pornography business. Attached to the affidavit were photocopies of materials in the UPS package, including photographs of diverse sexual activities from a booklet entitled "Children-Love," and circulars identifying A&E as a "pornographic mail-order business." Based on the affidavit and its attachments, the issuing magistrate had reasonable cause to believe that the UPS package contained obscene materials mailed in violation of federal law, and that the four packages located at the Academy and addressed to A&E did also.

Six months later a second search warrant was issued, authorizing seizure of two more packages and a box of letters, all addressed to A&E and located at Academy. The issuing magistrate found probable cause to believe that the seizure would divulge pornographic materials or other evidence relating to violations of federal obscenity statutes (18 U.S.C. §§ 1461, 1462). In addition to reciting the materials contained in the first affidavit, the second warrant's affidavit detailed the contents of four films seized under the first warrant, which explicitly depicted sexual activities between people and animals, adults and children, and homosexuals. The affidavit also contained information gained from Academy employees that the new materials had been received addressed to A&E, and were currently in Academy's possession. The second warrant, as well as the first, issued upon probable cause, without constitutional frailty.

At trial the jury was instructed that the applicable "contemporary community standard" was that of the Denver metropolitan area. Appellant notes that mailing situs in the case ranged throughout the continental United States, Puerto Rico and Canada, and he urges that the community standards of each of these locales should have been presented to the jury and applied by them.

A finding of obscenity must rest, Inter alia, on a determination that "the average person," in applying "contemporary community standards" to the material taken as a whole, would determine that such "appeals to the prurient interest." Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. 2607. Obscenity is thus considered to be contextual, in that differences in the contemporary standards of different communities create different conclusions as to obscenity. ³ "People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." Miller v. California, supra at 33, 93 S.Ct. at 2620.

Additionally, local community standards are appropriate because they are more cohesive and concrete than any hypothetical national standard. ⁴

When the allegedly obscene materials are placed into evidence, the juries' overall background, including their familiarity with their communities' standards renders expert testimony unnecessary, if not irrelevant. Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). ⁵ Of course, this benefit occurs only when, as here, the jury is from the community whose standards are applicable. Otherwise, capturing and conveying a community's "contemporary standards" vis-a-vis expert testimony is required, a difficult task at best. See United States v. McManus, 535 F.2d 460 (8th Cir. 1976).

The government can bring a case of this type in either the district where the material was mailed or the district where it was received. United States v. McManus, supra. This case was filed and prosecuted in an appropriate district, the district to which the materials were mailed, and the "contemporary community standards" of that locale provided the appropriate standard for determining obscenity. Asking the jury to try to apply other communities' standards would have been inappropriate.

Next, appellant alleges that the FBI's request of UPS to detain the initial package constituted an unconstitutional seizure and that all evidence flowing therefrom should have been suppressed, since the direct and indirect products of illegal searches and seizures are evidentially inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

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