UNITED STATES v. CUTTING

TRASK, Circuit Judge:

Cutting and Still appeal their convictions, following jury verdicts of guilty, for mailing obscene matter and for mailing advertisements for obscene matter in violation of 18 U.S.C. § 1461. Cutting was convicted on 12 separate counts; Still was convicted on 11. Each was fined separately on each count, and each was given concurrent sentences of three years' probation on all counts of which he was convicted.

The material involved here concerns sample photographs with some description, two advertisements (counts 14 and 15) containing printed material but unaccompanied by photographs, and one reel of motion picture film. Cutting's convictions on five counts involving still photographs (counts 10, 11, 12 and 13) and count 20, the motion picture film, were based on material that can be described as "hardcore pornography." See Ginzberg v. United States, 383 U.S. 463, 499, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (Stewart, J., dissenting). The material variously depicts, in explicit detail, acts of sexual intercourse, including fellatio and cunnilingus. See Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The remaining material consisted of still photographs of nude females in various frontal postures with legs spread apart and the camera focused upon the genitals. The written material accompanying the photographs made no pretense of representing that they were for any serious artistic, scientific, or literary purpose.

In instructing the jury, the district court told its members that the community to be applied was the national community as a whole. No objection was made to these instructions. Neither side introduced any expert testimony concerning the availability or acceptability of the materials alleged to be obscene at either the national or local levels. The photographs, films, and advertisements were before the jury. Expert testimony is not necessary to enable the jury to judge the obscenity of material which has been placed in evidence before them. See Hamling v. United States, 418 U.S. 102, 113, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 120-22, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). The jury examined the evidence and returned verdicts of guilty on all counts.

The acts underlying the indictment and trial took place before the 1973 and 1974 obscenity decisions of the Supreme Court of the United States. Appellants are therefore entitled to have their convictions measured against the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 976, 16 L.Ed.2d 1 (1966), unless they would benefit by application of the Supreme Court's more recent decisions. Hamling v. United States, 418 U.S. 87, 102, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974). It is a general rule that a change in the law which has occurred after a relevant event in a case will be given effect while the case is on direct appeal. Hamling v. United States, supra, 418 U.S. at 102, 94 S.Ct. 2887, Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). That rule applies here, and thus the judgments of conviction also must be substantively examined in the light of the principles laid down in the more recent cases. Hamling v. United States, supra, 418 U.S. at 102, 94 S.Ct. 2887.

Both the Memoirs test, Memoirs v. Massachusetts, supra at 418, and the Miller test, Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. 2607, in the second portion of their tripartite tests, proscribe sexual material which is "patently offensive." In Miller, the Court took occasion to give examples of what is meant by "patently offensive":

"It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

"(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Miller v. California, supra at 25, 93 S.Ct. at 2615.

The Court in Hamling v. United States, supra, 418 U.S. at 115, 94 S.Ct. at 2906, said of the material there,

"It is plain from the Court of Appeals' description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now § 1461 to cover." (Emphasis added.)

Thus, the Court in Hamling defined for purposes of section 1461 what constitutes hard-core pornography and found that it is made up in part at least by the examples listed in Miller.

To the argument made in Hamling that because the crime for which convictions had been obtained had not been enumerated in the state at the time of their conduct, the convictions could not be sustained, the Court responded:

"But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal." Hamling v. United States, supra 418 U.S. at 116, 94 S.Ct. at 2907.

The Handling Court, supra at 114, 94 S.Ct., at 2906, to the same effect also said:

"As noted above, we indicated in United States v. 12 200-ft. Reels of Film, supra, 413 U.S. [123], at 130 n. 7, 93 S.Ct. [2665], at 2670 [ 37 L.Ed.2d 500 (1973)] that we were prepared to construe the gueneric terms in 18 U.S.C. § 1462 to be limited to the sort to `patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California.' We now so construe the companion provision in 18 U.S.C. § 1461, the substantive statute under which this prosecution was brought."

It is for this court to determine whether the jury could constitutionally find the materials obscene, in light of the tests enumerated by the Supreme Court as well as the examples of patently offensive materials listed in Miller v. California. Hamling v. United States, supra, 418 U.S. at 100, 94 S.Ct. 2887. What appeals to the prurient interest and is patently offensive are essentially questions of fact, Miller v. California, supra, 413 U.S. at 30, 93 S.Ct. 2607; the issue of obscenity must, in the first instance, be left to the trier of fact, be it a properly instructed jury or a trial judge.

"The general rule of application is that `[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.' Glasser v. United States, 316 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)." Hamling v. United States, supra, 418 U.S. at 124, 94 S.Ct. at 2911.

But if it appears that the verdict is not support by substantial evidence, a reviewing court has an obligation to set that verdict aside if the finding be one of obscenity. See Jacobellis v. Ohio, 378 U.S. 184, 190 n. 6, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Brennan, J.). There is a limit beyond which a jury may not go in determining that certain materials are obscene. See Hamling v. United States, supra, 418 U.S. at 114, 94 S.Ct. 2887. A jury in an obscenity case may not act upon considerations of passion and prejudice and in disregard of the court's instructions any more than it could in other fields of law.

In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), a jury was instructed on obscenity under a Georgia statute in language substantially similar to the definition used in Memoirs. See note 1 supra. The material under question was the movie film, "Carnal Knowledge." There was substantial evidence of the quality of the film from an artistic standpoint, yet the jury found it to be obscene, and the Supreme Court in of Georgia affirmed by a divided court. On appeal to the Supreme Court, probable jurisdiction was noted, 414 U.S. 1090, 94 S.Ct. 719, 38 L.Ed.2d 547 (1973), the conviction reviewed, and the judgment reversed. The Court pointed out that while questions of appeal to the "`prurient interest'" or of "patent offensiveness" are "`essentially questions of fact,'" juries do not have "unbriddled discretion" to make their own determination of what is "`patently offensive.'" 418 U.S. at 160, 94 S.Ct. 2887. The Court then pointed out that there was nothing in the film which under the Miller standards and illustrations could be said to meet those requirements.

"While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including `ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards." Id. at 161, 94 S.Ct. at 2755.

The photographs in this proceeding do not fall within the description of the artistic material in Jenkins. Five counts involve explicit sex. There is no story line of theme to the film and no perceivable artistic value to the film or the four photographs. The other photographs are of female nudes that so posed that a jury could quickly find that the the sole purpose was to emphasize a lewd portrayal of genitals. Again, there was no pretense of artistic, scientific, or literary value connected with them. The jury was well within its province in finding them obscene — and its verdict is supported by substantial evidence.

Cutting also contends that he was Prejudiced because the district court instructed the jury that in determining obscenity the jury was to apply the standard of the average person "in the national community," the then prevailing law under Memoirs. Miller v. California, supra, rejected the national standard and substituted a "contemporary community standards" test. 413 U.S. at 33, 93 S.Ct. 2607. In Hamling v. United States, supra, U.S. at 102, 94 S.Ct. 2887, the Court held Miller retroactive with respect to cases on direct appeal when Miller was decided, as this case was. Hamling explained that in such a case as this "reversal is required only where there is a probability that the excision of the references to the `nation as a whole' in the instruction dealing with community standards would have materially affected the deliberations of the jury." 418 U.S. at 108, 94 S.Ct. at 2903. After considering the record and the charge as a whole, we conclude that the jury deliberations in this case would not have been materially affected by excision of references to the national standard. See United States v. Ratner, 502 F.2d 1300, 1302 n. 3 (5th Cir. 1974).

Except for the reference to "national" standards in the instructions, there was only one other mention of the matter during the trial of this case. In closing argument, defense counsel told the jurors they would be instructed that they must judge the material by a "national" standard. Counsel noted that the prosecution had offered no evidence as to what the "national" standard might be, and argued that it had therefore failed to carry its burden of proof. Defense counsel did not suggest that the "national" standard might be stricter than the local standard. The prosecutor ignored the subject entirely.

Since, as defense counsel said, there was no evidence as to the national standard (and no mention at all of a local standard), there is no basis for supposing that the jury would have assumed the national standard to be more strict than that which the jurors would apply as a result of their background as residents of the Central District of California. Except for defense counsel's statement, there would be no basis for supposing that the national standard might differ from the local standard.

The message conveyed by the instructions as a whole was that the applicable standard was a general one. The jurors were told that they were not to judge the material on the basis either of their personal impression, or of its impact on highly susceptible persons. They were reminded that people differ widely in their views as to the propriety of particular matter, and were admonished to consider the impact of the material on the "average person." These instructions presented the essentials of the "community standards" test and served its principal purposes, despite the references to the "national community as a whole." Hamling v. United States, supra, 418 U.S. at 107, 94 S.Ct. 2887.

It would not be appropriate to remand for an evidentiary hearing in an effort to determine whether the national standard was more strict than that prevailing in the Central District of California when the mailings occurred. Under Miller the question for the trier of fact is "whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . ." Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. at 2615. This is a general standard, not a geographic one. Rejection of a uniform national standard does not necessitate "the substitution of some smaller geographical area into the same sort of formula." Hamling v. United States, supra, 418 U.S. at 104, 94 S.Ct. at 2901. The purpose of the "community standards" instruction is not to distinguish attitudes in one area from those in another, but rather to distinguish personal or aberrant views from the generalized view of the community at large. Instructions referring to the nation as a whole may serve this purpose. Hamling v. United States, supra, 418 U.S. at 107, 94 S.Ct. at 2887. See also United States v. Dachsteiner, 518 F.2d 20 (9th Cir. 1975).

The fact finder "is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination . . . ." Hamling v. United States, supra, 418 U.S. at 104, 94 S.Ct. at 2901. The test tends to result in application of "local" attitudes because of the limited area from which the jury is drawn, but this does not make the obscenity standard any more a geographic one than tests involving "the propensities of a `reasonable' person in other areas of the law." Hamling v. United States, supra, 418 U.S. at 104-05, 94 S.Ct. at 2901.

Thus, when an instruction has been given in terms of a "national" standard, the essence of the question of prejudice is whether the instruction may have led the jury to apply some specialized test that might differ to the defendant's disadvantage from a generalized "average person, applying contemporary community standards" test. In this case, as we have said, we do not believe it did.

Hamling and Dachsteiner do not stand for the proposition that an erroneous instruction to apply national standards is harmless only if the local standard was the same as or stricter than the national standard. Prejudice does not depend on whether the standards differ in fact, but whether the jury thought they did. A remand to determine whether the national standard is more or less strict than the local standard would be an exercise in futility. To be relevant to the question of prejudice the hearing would have to determine whether the jurors thought the two standards differed, and, if so, whether they thought the national standard was the stricter. Obviously such a hearing would be inappropriate. The question of prejudice is to be resolved on what the record shows as to the probability that the reference to a national standard would have materially affected the deliberations of the jury. Hamling v. United States, supra, 418 U.S. at 108, 94 S.Ct. 2887.

In both Hamling and Dachsteiner the national standards instruction was held harmless because nothing in the record indicated the jury thought the national standard which it was to follow, was more strict than any other standard. This is true in the present case. In United States v. Henson, 513 F.2d 156 (9th Cir. 1975), on the other hand, a new trial was ordered because "the Government may have succeeded in its attempt to convince the jury" that the national standard was more strict than that in California. The court in Henson stated that the "prosecutorial attempt to separate and differentiate a `national standard' from the defense testimony concerning the attitudes of Californians" distinguished Henson from Hamling and Dachsteiner. United States v. Henson, supra, 513 F.2d at 158.

It is true that there was some evidence that the two standards were the same in both Hamling and Dachsteiner. But the presence of this evidence did not determine the result in either case. It "only serve[d] to confirm" the conclusion of the court in Hamling that the references to a "national" standard did not require reversal. 418 U.S. at 110, 94 S.Ct. 2887. Similarly, in Dachsteiner, the emphasis was not upon the presence of some evidence of similarity in standards, but upon the fact that the "record contains no evidence that would have tended to persuade the jury that national standards of obscenity are more strict than those" in the district in which the case was tried. United States v. Dachsteiner, supra, 518 F.2d at 22.

Finally, it is argued that it would be a violation of due process to deny appellants an opportunity to try the "local standards" issue. The Hamling majority rejected this position. As our court noted in Dachsteiner:

"This argument is foreclosed by Hamling. There, the trial was also completed before Miller and 12 200-ft. Reels of Film were decided, 418 U.S. at 97, 94 S.Ct. 2887. The Supreme Court nevertheless found an absence of prejudicial error, relying only on the record before it. 418 U.S. at 107, 94 S.Ct. 2887. We do likewise here. Having examined the record, we find no indication that the erroneous instructions in this case `materially affected the deliberations of the jury.'" United States v. Dachsteiner, supra, 518 F.2d at 22, quoting Hamling v. United States, supra, 418 U.S. at 108, 94 S.Ct. 2887.

Still's conviction is affirmed as to counts 1 to 5 inclusive, count 7, and as to counts 16 to 19 inclusive. Cutting's conviction is affirmed as to counts 1, 2, 6, 8 and 9; also as to counts 10 to 13 inclusive; and as to counts 16 and 20. Convictions of both Cutting and Still on count 15 are reversed, and because no convictions on this count could possibly be maintained we direct that as to this count the indictment be dismissed.