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Docket Number

Nos. 76-1829, 76-1830.

Attorney(S)

Ronald F. Ross, Asst. U.S. Atty., Albuquerque, N. M. (Victor R. Ortega, U.S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee. Burton C. Jacobson, Beverly Hills, Cal. (John B. Leyba, Albuquerque, N. M., on the brief), for Jacob James Dost, defendant-appellant. David M. Ebel, Denver, Colo. (Davis, Graham Stubbs, Denver, Colo., on the brief), for Thomas Edward Kilfoyle, defendant-appellant.

Judges

Robert Hugh McWilliams

Acts

Crimes And Criminal Procedure — Obscenity — Crimes — Mailing Obscene Or Crime-Inciting Matter

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Smart Summary

Summary of Opinion: United States v. Jacob James Dost & Thomas Edward Kilfoyle (10th Cir. May 1, 1978)

Factual and Procedural Background

A four-count indictment charged James Dost and Thomas Kilfoyle with mailing nonmailable matter from Los Angeles, California, to Roswell, New Mexico, in violation of 18 U.S.C. § 1461. The first count alleged mailing an advertising letter that gave information on how and where certain nude photographs could be obtained. The other three counts each alleged separate mailings of obscene photographs. The photographs at issue depicted ten- and eleven-year-old girls, nude, in suggestive poses and engaged in lewd acts. A jury convicted both defendants on all four counts. Each defendant appealed his sentence; the Court of Appeals affirmed.

Legal Issues Presented

Whether the photographs at issue were obscene as a matter of law and whether the trial court erred in submitting the obscenity question to the jury.
Whether the trial court erred in giving an instruction permitting the jury to consider evidence of "pandering" when determining obscenity.
Whether there were irregularities in the grand jury proceedings that led to the indictment.
Whether the evidence was sufficient to tie Kilfoyle to the mailings and to establish his knowledge of the nature of the materials mailed.

Arguments of the Parties

Defendants-Appellants' Arguments

Both defendants argued the photographs were not obscene as a matter of law and that the trial court erred by submitting the obscenity question to the jury.
Both defendants contended the trial court erred in giving the pandering instruction.
Both defendants challenged the grand jury proceedings that resulted in the indictment.
Kilfoyle additionally argued the evidence was insufficient to connect him to Dost's mailings and that he lacked knowledge of the type of material being sent.

Plaintiff-Appellee's Arguments

The opinion does not contain a detailed account of the appellee's specific arguments beyond the prosecution's presentation of photographic evidence and expert witness testimony supporting obscenity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)	Definition and test for obscenity.	The court stated the trial court's definition of obscenity complied with Miller and upheld submission of the issue to the jury.
Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966)	Language regarding pandering used in jury instruction.	The pandering instruction given by the trial court was couched in language from Ginzburg; the appellate court found no error in giving that instruction.
Hamling v. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)	Relevance of pandering evidence to obscenity determinations.	The court cited Hamling to support the proposition that evidence of pandering may be relevant in determining whether materials are obscene.
United States v. Donahey, 529 F.2d 831 (5th Cir. 1976)	Authority referenced in discussion of grand jury irregularity.	The court cited Donahey in finding nothing to indicate grand jury irregularity in the present case.
United States v. Evans, 542 F.2d 805 (10th Cir. 1976)	Authority referenced in discussion of grand jury irregularity.	The court cited Evans in finding nothing to indicate grand jury irregularity in the present case.
United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973)	Authority cited regarding inference of knowledge and culpability.	The court relied on Spoonhunter to support the inference that Kilfoyle knew the nature of the materials and that bad legal advice does not shield him from consequences.
United States v. Bourassa, 411 F.2d 69 (10th Cir. 1969)	Authority cited regarding inference of knowledge and culpability.	The court cited Bourassa along with Spoonhunter to support the view that Kilfoyle was not an innocent bystander and could be held responsible despite alleged bad legal advice.

Court's Reasoning and Analysis

On obscenity: The court found that the photographs—depicting ten- and eleven-year-old girls nude in suggestive poses and performing lewd acts—"in a very real sense speak for themselves." The prosecution supplemented the photographic evidence with testimony from two clinical psychologist experts, and the defense offered expert witnesses as well. The court viewed these presentations as creating a factual dispute properly resolved by the jury. Finding "ample evidence" to support the jury's determination that the photographs were obscene, the court concluded the trial court's instruction on obscenity complied with Miller v. California.

On pandering: The trial court instructed the jury that they could consider evidence of "pandering" (defined for the jury) when determining whether the photographs were obscene, effectively permitting consideration of the "setting" and manner in which the materials were presented to the public. The appellate court held that such evidence is relevant under the Miller test, that the instruction drew on language from Ginzburg, and that giving the instruction was not error. The court cited Hamling to support the proposition that pandering evidence can be relevant to obscenity determinations, and emphasized the commonsense premise that mode and manner of presentation are factors a jury may consider.

On grand jury proceedings: Defendants challenged the grand jury process, but counsel conceded difficulty on this point at oral argument. The appellate court found nothing indicating grand jury irregularity and cited United States v. Donahey and United States v. Evans in support of that conclusion.

On Kilfoyle's claimed lack of involvement/knowledge: The court reviewed evidentiary facts tying Kilfoyle to the operation: he opened the post office box used for responses, indicated part of the business involved mailing "photographs," and he and Dost collected mail responding to sex-oriented advertisements. Critically, upon arrest Kilfoyle spontaneously stated that an attorney had told him it was permissible to mail the merchandise he was selling. The court held this utterance allowed an inference that Kilfoyle knew the nature of the material; that reliance on bad legal advice did not insulate him from responsibility; and that, on the evidence, he was not an innocent bystander. The court cited United States v. Spoonhunter and United States v. Bourassa in support of these points.

Holding and Implications

Judgment affirmed.

Implications: The direct consequence is that the convictions and sentences of both defendants were affirmed by the Tenth Circuit. The court sustained the trial court's determinations on obscenity, the propriety of the pandering instruction, the absence of grand jury irregularity, and the sufficiency of the evidence as to Kilfoyle's knowledge and participation. The opinion does not state or announce any novel rule of law beyond applying existing precedent to the facts; no broader new precedent was set by this decision.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JACOB JAMES DOST AND THOMAS EDWARD KILFOYLE, DEFENDANTS-APPELLANTS.

McWILLIAMS, Circuit Judge.

In the first count of a four-count indictment, James Dost and Thomas Kilfoyle were charged with mailing nonmailable matter from Los Angeles, California, to Roswell, New Mexico, in violation of 18 U.S.C. § 1461. The material in question was an advertising letter giving information as to where, how, from whom, and by what means certain nude photographs could be obtained. In the other three counts, the two defendants were also charged with mailing other nonmailable matter from Los Angeles, California, to Roswell, New Mexico, namely, obscene photographs, in violation of 18 U.S.C. § 1461. Each of the latter three counts was based on a separate mailing. A jury convicted the defendants on all four counts, and each now appeals his sentence. We affirm.

Both defendants assert that the photographs in question were not obscene, as a matter of law, and that the trial court erred in submitting the issue to the jury. We disagree. The photographs in question were of ten- and eleven-year-old girls, in the nude, in suggestive poses, and doing a variety of lewd acts. On the issue of obscenity, the photographs in a very real sense speak for themselves. However, the prosecution did not rest there, and called two expert witnesses, both clinical psychologists, who testified at length. The defense countered with some expert witnesses of their own. However, all this created was an issue of fact. There is ample evidence to support the jury's determination that the photographs were obscene. We think the trial court in its definition of obscenity complied with Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

The trial court instructed the jury concerning the effect to be given any evidence of pandering. The instruction given was couched in language from Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). Both defendants now claim that the trial court erred in giving the so-called pandering instruction. We disagree.

The jury was instructed that in determining whether the photographs in question were obscene, they could consider any evidence of "pandering" in making such determination. Pandering was then defined. In short, the jury was instructed that they could take into consideration the "setting" in which the photographs and brochures were presented by the two defendants. Without going into greater detail, we find no error in the giving of the trial court's instruction on pandering. It is common sense that the mode and manner in which the photographs were presented to the general public is one fact that may be considered in determining whether, under the Miller test, the photographs themselves are obscene. It is true that pandering was not charged in the indictment of the defendants, nor is it an element of the crimes which were charged. However, evidence of pandering can be relevant in determining whether the materials in issue are obscene. We find no error in the giving of the instruction. Hamling v. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

Both defendants also challenge the grand jury proceedings which lead to the present indictment. At oral argument counsel conceded that he had an "uphill battle" on this particular point. In our view, counsel did not win his battle. We find nothing to indicate grand jury irregularity. United States v. Donahey, 529 F.2d 831 (5th Cir. 1976) and United States v. Evans, 542 F.2d 805 (10th Cir. 1976).

Kilfoyle asserts one additional ground for reversal. Dost conceded sending the materials in question through the mail, and his main line of defense was that the material was not obscene. Kilfoyle claims that the evidence is insufficient to tie him in with Dost, and that in any event he had no knowledge of the type of material being sent through the mail. We disagree.

Kilfoyle opened the Post Office box in Los Angeles to which inquiries were directed. In opening the box, Kilfoyle indicated that a part of the business was the mailing of "photographs." Both Kilfoyle and Dost picked up the mail which had been sent to the box in response to advertisements placed in sex-oriented papers. And very significantly, when arrested, Kilfoyle blurted out, spontaneously and in response to no questioning, that he "had checked with an attorney and that an attorney had told him that it was all right to mail the merchandise that he was selling through the U.S. mails." This utterance clearly permits the inference that Kilfoyle knew the nature of the material in which he and Dost were dealing. The fact his lawyer may have given Kilfoyle some bad advice does not shield Kilfoyle from the consequences of his act. On the evidence, Kilfoyle is not an innocent bystander. United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973) and United States v. Bourassa, 411 F.2d 69 (10th Cir. 1969).

Judgment affirmed.

UNITED STATES v. DOST