United States v. Elkins, CR 74-1828.

• Decision Date: 22 May 1975
• Docket Number: No. CR 74-1828.,CR 74-1828.
• Citation: 396 F. Supp. 314
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Robert ELKINS et al., Defendants.

396 F. Supp. 314

UNITED STATES of America, Plaintiff, v. Robert ELKINS et al., Defendants.

No. CR 74-1828.

United States District Court, C. D. California.

May 22, 1975.

William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Chief, Crim. Div., Barbara A. Meiers, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Roger J. Diamond, Hecht & Diamond, Pacific Palisades, Cal., for defendants Robert Elkins and Howard K. Cohen.

Refold & Steiniger, Encino, Cal., for defendants Daniel Goldblum, also known as Danny Gold, and Richard J. Aronson.

Elliot J. Abelson, Lappen, Abelson & Harris, Beverly Hills, Cal., for defendant Stephen R. Ginsburg.

Pizante & Gregg, Beverly Hills, Cal., for defendant Angelo Giudice.

MEMORANDUM OPINION AND ORDER OF DISMISSAL.

CRARY, District Judge.

The Indictment in the within action was filed in the Northern District of Iowa and charges the defendants with conspiracy to cause to be delivered by mail certain nonmailable, obscene and lewd advertisements, motion picture films, and information as to the obtaining of said material, and using common carriers to carry said material in interstate commerce, in violation of Sections 1461 and 1462, Title 18, United States Code.

The case was transferred to this District from the Northern District of Iowa by order for change of venue for the convenience of parties and witnesses. After ruling that the contemporary standards, as to obscenity, of the Northern District of Iowa, the area of the distribution of the material, should be applied, the Iowa Court concluded that under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), "it is not necessary to the application of community standards found in northwest Iowa that trial be had in this District. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (June 24, 1974), the Court said that simply because a trial is held in a certain District, it does not follow that the trial `Court would not be at liberty to admit evidence of standards existing in some place outside of the trial district, if it felt such evidence would assist the jury in the resolution of the issues which they must decide.' Thus under Miller it is not necessary that the relevant community standards be applied by a jury from the same community. Upon motion by the prosecution, evidence may be received in the Central District of California as to the contemporary community standards of the affected areas of Iowa. This avoids the problem which would arise were defendants only to be judged according to the standards of the place of trial."

The Government opposed the defendants' motion for change of venue, and prior to trial in this District moved for an evidentiary ruling as to whether the contemporary community standards in the Northern District of Iowa, as opposed to the standards in this District, would be the standards applied in the trial of the case. By written order filed May 19, 1975, this Court ruled that only evidence as to the contemporary community standards for the Northern District of Iowa would be admitted as to this issue. It was further ordered that the Iowa community standards could not be proven solely by expert testimony, since expert testimony is admissible only to assist a jury in determining standards outside the District of trial.

The Court concludes that an attempt by the Government to prove its case in this forum solely by expert testimony would not provide a proper basis on which the jury could determine the obscenity of the materials in the case at bar because of the special and integral part that the knowledge of a juror of the community from which he comes plays in deciding what conclusion the average person applying contemporary community standards would reach in a given case.

It appears from the opinion of the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, that the basic guildelines for the trier of the fact in an obscenity case must be

"(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. 229 at 230, 92 S.Ct. 2245 at 2246, 33 L.Ed.2d 312, quoting Roth v. United States, supra, 354 U.S. 476 at 489, 77 S.Ct. 1304 at 1311, 1 L.Ed.2d 1498; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

The Supreme Court in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, observed that in the Miller case, supra, the Court had abandoned the application of the national standards of obscenity because of the difficulty in formulating such uniform standards and emphasized

"the ability of the juror to ascertain the sense of the `average person, applying contemporary community standards' without the benefit of expert evidence, clearly indicates that 18 U.S.C. § 1461 is not to be interpreted as requiring proof of the uniform national standards which were criticized in Miller." Id. 105, 94 S.Ct. 2901.

In commenting on the test as stated in the Miller case, the Court in Hamling says:

"the test was stated in terms of the understanding of `the average person, applying contemporary community standards.' Id., at 24, 93 S.Ct. 2607. When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 56, 93 S.Ct. 2628, 37 L.Ed.2d 446, of the rule that the

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