US v. Pryba

• Decision Date: 12 February 1988
• Docket Number: Crim. No. CR 87-00208-A.
• Citation: 678 F. Supp. 1225
• Parties: UNITED STATES of America v. Dennis E. PRYBA, Barbara A. Pryba, Jennifer G. Williams, and Educational Books, Inc.
• Court: U.S. District Court — Eastern District of Virginia

678 F. Supp. 1225

UNITED STATES of America v. Dennis E. PRYBA, Barbara A. Pryba, Jennifer G. Williams, and Educational Books, Inc.

Crim. No. CR 87-00208-A.

United States District Court, E.D. Virginia, Alexandria Division.

January 29, 1988.

As Revised February 12, 1988.

Lawrence Leiser, Asst. U.S. Atty., Alexandria, Va., for U.S.

Thomas J. Morris, Arlington, Va., for Dennis E. Pryba.

William B. Cummings, Alexandria, Va., for Barbara A. Pryba.

Plato Cacheris, Washington, D.C., for Jennifer G. Williams.

J. Frederick Sinclair, Alexandria, Va., for Educational Books, Inc.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendants in this novel RICO-obscenity case¹ sought in the course of trial to introduce certain poll and survey results and "expert" testimony on the issue of obscenity. The Court permitted voir dire of the proferred experts, examined the challenged material as well as allegedly comparable material, and reviewed the poll and survey results and methodology before ruling that the evidence must be excluded. This Memorandum Opinion records the reasons for these rulings.²

Background

A twelve count indictment charged three individuals and one corporation with inter alia, racketeering in connection with the interstate sale of obscene videos and magazines and tax fraud. Central to the RICO and obscenity counts was whether the charged materials were legally obscene. The constitutional test for obscenity was announced by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Material is obscene and loses First Amendment protection where the factfinder concludes that:

(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

(2) the work describes, in a patently offensive way, sexual conduct specifically defined; and

(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Id. at 24, 93 S.Ct. at 2614-15; see also Pope v. Illinois, ___ U.S. ___, 107 S.Ct. 1918, 1920, 95 L.Ed.2d 439 (1987); Roth v. United States, 354 U.S. 476, 487, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957).

The question for the jury then was whether the charged materials met these tests. The question for the Court was whether, given the Miller test, the survey and expert testimony were admissible. Imbedded in this question, as the discussion following shows, were issues of relevancy, probative value, jury confusion, unfair prejudice, and competency. To understand why the Court resolved these issues against admissibility, it is necessary to describe in some detail the nature of the charged materials.³

The Charged Materials

The charged materials consist of four videotapes and nine magazines. Each is separately described.

1. She-Male Confidential, Bizarre Encounter # 9. This video depicts a variety of sexual activities involving "she-males" — persons who have female bodies, including fully developed breasts. They are women in all respects save one: they have male genitalia. In the first scene, two she-males dressed as women engage in fellatio and anal intercourse with a man. The second vignette depicts a she-male inserting what appears to be a large pipe into a woman's anus. The she-male and the woman also engage in vaginal and anal intercourse. The third scene, captioned "Spanked by a Stranger," shows a man throwing a she-male to the ground and performing fellatio upon the she-male. The man then has anal intercourse with the she-male.

2. Wet Shots. This video features men and women engaged in vaginal and anal intercourse and oral sex. Many of the scenes involve groups of men and women. The film also contains close-up depictions of male ejaculations on the bodies and faces of others. In one scene, men are shown ejaculating into a glass of liqueur. A woman then drinks the mixture.

3. The Girls of the A-Team. This film, as the title might suggest, is devoted chiefly to showing anal intercourse between men and women, in couples and in groups. The film also depicts a variety of other sexual activities between women in couples and larger groups, including vaginal and anal insertion of a range of objects.

4. The Punishment of Anne. This video predictably has a sado-masochistic theme. A woman and a man subject a younger woman to various forms of degradation, including forcing her to urinate in front of them, photographing her while she is naked and in various positions of bondage, whipping her while she is naked, inserting vegetables into her vagina, putting chains on her and sticking pins into her breasts.

The content of most of the magazines is also sado-masochistic in nature.

1. Torment depicts nude and partially clad women bound and suspended by ropes, chains and straps in contorted positions. Ropes and straps appear frequently in the genital area. Many of the women have tortured expressions on their faces. Welts, whether actual or simulated, appear on some of the women. The accompanying text deals exclusively with bondage and includes descriptions of the sexual pleasure which the sadistic party derives from forcing the victim to endure painful positions of bondage for long periods of time.

2. In She ... Who Must Be Obeyed, a woman is shown subjecting a nude man to bondage and whipping. Acts of violence to the man's genitals are also vividly depicted.

3. Bottoms Up chiefly depicts nude women being spanked with hands and with objects such as canes and whips. The buttocks of several of the women appear to be red and bruised as if flagellation were actually taking place. The stories involve the sexual gratification which both the abusers and victims receive from this bizarre activity.

4. In Slave Training, acts of abuse to male and female genitals are shown in cartoons and photographs. In several photographs, mousetraps and tourniquet devices are pictured on women's breasts. One woman's breasts have actually become purple due to tourniquets. The text focuses on various forms of emotional and physical abuse, such as insertion of steel rings into a woman's nipples and caning of a man's penis.

5. Tied Up depicts naked and partially clad women in various states of bondage and includes several close-up photographs of women's genitals.

6. Finally, the photographs in Super Bitch depict female domination and male submissiveness.

The remaining three magazines contain graphic depictions of female genitals. Tender Shavers shows young women shaving their pubic hair and masturbating. Whether some of the models are adults or juveniles is unclear. Bobby socks, ponytails and makeup are employed to underscore, if not create, the appearance of adolescence, presumably to appeal to hedophiles. Crotches contains prominent, almost clinical, displays of young women's genitals. The accompanying text makes clear that the reader is supposed to believe that the models are teenage girls. The last magazine, Poppin Mamas, depicts naked pregnant women in lascivious poses.⁴

A. Public Opinion Poll

Defendants attempted to introduce into evidence the results of a public opinion survey to demonstrate the community's attitude, toleration or standards with regard to sexually explicit materials. At the direction of John B. McConahay, Ph. D.,⁵ a public opinion survey firm conducted the poll through telephone calls. After asking preliminary questions about the extent of the interviewee's involvement in the community, the interviewers were directed to say:

The next few questions deal with X-rated videos and adult movies and magazines. The nudity and sex shown in these types of adult materials include: nude bodies and close-up, graphic depictions of a variety of sexual activities, including: sexual intercourse, ejaculation, bondage, oral sex, anal sex, group sex and variations of these by adult performers.

Each respondent was then asked 1) whether he thought that the portrayal of "nudity and sex" in materials available to adults only had become more or less acceptable in recent years; 2) whether he agreed or disagreed with the statement that adults who want to should be able to obtain and view materials depicting "nudity and sex;" 3) whether he believed that he should be able to buy or rent materials depicting "nudity and sex;" and 4) whether he agreed or disagreed with the statement that adults who want to should not be able to buy or rent materials depicting "sex and nudity."

The government objected to the introduction of this survey on the grounds that it was both irrelevant to the issues in this case and methodologically flawed. After examining the poll, its methodology and results, the Court ruled that the proffered opinion poll was not relevant to whether the charged materials were obscene and therefore excluded evidence concerning the poll. The Court also concluded that even if relevant, the probative value of the poll was so slight that it was plainly outweighed by the unfair prejudicial effect the poll would have had. See Fed.R.Evid. 403.

Evidence concerning the poll was irrelevant because the pollster's questions were not designed to elicit information about whether there was community acceptance of the actual materials in question or similar materials. Rather, the questions focused more on the general political question whether adults should be able legally to obtain pornography. In other words, the poll's questions seemed designed to measure public opinion not on whether the charged materials were accepted in the community, but on whether the laws banning obscenity should be repealed.

Courts have recognized that properly conducted public opinion surveys may be useful in gauging community standards for the purposes of determining whether the materials at issue are obscene. United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596, 599. (7th Cir.1984); Commonwealth v. Trainor, 344 Mass. 796, 374 N.E.2d 1216, 1220 (1978); People v. Thomas, 37 Ill.App.3d 320, 346...