Citation Codes

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citation codes

Docket Number

No. 71-3145.

Attorney(S)

Stanley Fleishman, Hollywood, Cal., Joseph Pardo, Miami, Fla., for defendants-appellants. Robert W. Rust, U.S. Atty., George A. Kolus, Asst. U.S. Atty., Miami, Fla., Donald H. Feige, Crim. Div., Dept. of Justice, Robert D. Keefe, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Judges

Walter Pettus Gewin

Acts

Crimes And Criminal Procedure — Obscenity — Crimes — Mailing Obscene Or Crime-Inciting Matter
Crimes And Criminal Procedure — Obscenity — Crimes — Importation Or Transportation Of Obscene Matters
Customs Duties — Special Provisions — Tariff Act Of 1930 — Miscellaneous — Immoral Articles; Importation Prohibited

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Smart Summary

Summary of Opinion: United States v. Antar A. R. Sulaiman; Over 21 Book Club, Inc.

Factual and Procedural Background

Antar Sulaiman and the Over 21 Book Club, Inc. were convicted in the United States District Court for the Southern District of Florida under 18 U.S.C.A. § 1461 for knowingly using the mails to deliver obscene advertisements and motion picture films to certain individuals. The convictions arose prior to the Supreme Court's decision in Miller v. California. The appeals were held pending the Supreme Court's disposition of Miller. The Fifth Circuit panel (Tuttle, Gewin and Roney, Circuit Judges) issued this per curiam opinion on February 19, 1974; rehearing and rehearing en banc were denied April 3, 1974. The panel affirmed the convictions.

Legal Issues Presented

Whether the Government must introduce expert testimony in addition to the challenged material to prove an obscenity charge.
Whether proof that defendants knew the material was sexually oriented (as opposed to knowledge that the material was legally obscene) is sufficient to convict under 18 U.S.C.A. § 1461.
Whether 18 U.S.C.A. § 1461 is unconstitutionally vague or overbroad.
Whether application of the local community standard enunciated in Miller applies to federal obscenity prosecutions and whether applying Miller standards to convictions obtained prior to Miller poses ex post facto or national-standard nonworkability problems.

Arguments of the Parties

Appellants' Arguments

They argued the nonworkability of a national standard when combined with applying Miller standards ex post facto to convictions obtained before Miller.
They contended that the local community standard test enunciated in Miller does not apply to federal obscenity prosecutions, premised on the fact that Miller was a state prosecution.
They relied on the prospective language of Footnote 7 in Twelve 200-Ft. Reels to argue that local community standards should be given only prospective application and therefore could not form the basis for convictions prior to June 21, 1973.

The opinion does not contain a detailed account of the plaintiff-appellee's specific arguments in this appeal beyond the legal positions adopted by the court in its enumerated points.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. New Orleans Book Mart, 490 F.2d 73 (5th Cir. 1974) [No. 71-2594]	Cited in conjunction with the panel's contemporaneous decisions addressing the applicability of Miller standards and related challenges.	Referenced as answering adversely to defendants the argument about nonworkability/national standard and ex post facto application; used as supporting authority for affirmance.
United States v. Thevis, 490 F.2d 76 (5th Cir. 1974) [No. 72-2664]	Listed among contemporaneous panel decisions being decided the same day.	Referenced as part of the panel's body of related decisions controlling points raised on appeal.
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)	Establishes the Miller obscenity standard, including the significance of local community standards.	The panel held that virtually every point made on appeal is controlled by Miller and applied Miller standards in reviewing the material; the panel also reviewed material under both Memoirs and Miller tests and found obscenity.
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)	Supports that the Government does not have to introduce expert testimony in addition to the challenged material to prove obscenity.	Used by the court to state that expert testimony is not required, citing with approval related Fifth Circuit authority.
Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973)	Cited among Supreme Court decisions in the cluster of Miller-era obscenity rulings.	Included in the panel's list of controlling decisions that shape the legal context for the appeal.
United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973)	Part of the Supreme Court obscenity decisions indicating standards applicable to federal prosecutions; includes Footnote 7 referenced by defendants as prospective language.	The defendants cited Footnote 7 to argue prospective-only application of local community standards; the court noted the citation but did not decide the prospective-application question because it found the material obscene under both tests.
United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973)	Cited as indicating that Miller-era standards apply to federal prosecutions and related contexts.	The court referenced Orito (and Twelve 200-Ft. Reels) as making clear that Miller standards apply to prosecutions under federal statutes, relying on Fifth Circuit precedent that so held.
United States v. Millican, 487 F.2d 331 (5th Cir. 1973)	Holds that defendants' knowledge that the material was sexually oriented is sufficient for conviction under § 1461; also cited regarding § 1461's constitutionality.	The court applied Millican to state that proof of knowledge of sexual orientation suffices and cited it in support of § 1461 being not vague or overbroad.
United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973)	Holds that Miller-era standards apply to federal prosecutions; cited for the proposition that the community standard applies in federal cases.	The court relied on Thevis to reject defendants' contention that Miller's local community standard does not apply to federal obscenity prosecutions and to avoid deciding the prospective-application question.
United States v. Groner, 479 F.2d 577 (5th Cir. 1973)	Cited with approval in Paris Adult Theatre I for the proposition that expert testimony is not required to prove obscenity in addition to the material itself.	Referenced as supportive Fifth Circuit authority for the court's statement that expert testimony was not required.
United States v. Cote, 485 F.2d 574 (5th Cir. 1973)	Cited for the proposition that 18 U.S.C.A. § 1461 is not unconstitutionally vague or overbroad.	Applied by the court to uphold the constitutionality of § 1461 in this context.
Twelve 200-Ft. Reels	Referenced specifically for Footnote 7 and the defendants' argument about prospective application of local community standards.	The court noted the defendants' reliance on the prospective language in Footnote 7 but did not need to resolve the issue because it reviewed the materials under both Memoirs and Miller standards and found them obscene.
Memoirs	Referenced as one of the tests used to evaluate obscenity (the Memoirs test).	The court reviewed the materials under both the Memoirs and Miller tests and concluded that the advertisements and films were within the legal parameters of obscenity.

Court's Reasoning and Analysis

The panel's analysis proceeded from the post-Miller landscape and existing Fifth Circuit authority. The court noted that these convictions arose before Miller and that the appeals were held pending Miller. The court then explained, consistent with Miller and related Supreme Court decisions, that many points raised by appellants are controlled adversely by those decisions.

The court articulated and applied several specific legal points:

Relying on Paris Adult Theatre I v. Slaton (and related Fifth Circuit authority such as Groner and Thevis), the court held that the Government is not required to present expert testimony in addition to the challenged material to prove obscenity. The court cited those authorities and applied that rule to the case.
The court held, following United States v. Millican, that defendants' knowledge that the material was sexually oriented is sufficient to sustain a conviction under 18 U.S.C.A. § 1461; specific knowledge that the material was legally obscene is not required.
The court concluded, citing United States v. Cote and United States v. Millican, that 18 U.S.C.A. § 1461 is not unconstitutionally vague or overbroad.
Addressing appellants' argument that the Miller local community standard does not apply to federal prosecutions, the court relied on United States v. Thevis and Supreme Court decisions (Orito and Twelve 200-Ft. Reels) to show that Miller-era standards apply to federal prosecutions. Because the panel had authority in Thevis and related decisions, it did not accept appellants' contention.
Although appellants urged that Footnote 7 of Twelve 200-Ft. Reels required prospective-only application of local community standards (arguing Miller could not be applied retroactively to convictions before June 21, 1973), the court expressly stated that it did not need to decide that question. Instead, the panel reviewed the advertisements and films under both the Memoirs and Miller tests and found them to meet the legal parameters of obscenity.

Holding and Implications

Holding: The panel affirmed the convictions.

Implications: The direct effect is that the convictions of Antar Sulaiman and Over 21 Book Club, Inc. under 18 U.S.C.A. § 1461 were affirmed by the Fifth Circuit. The court relied on Miller and a body of Fifth Circuit authority to reject appellants' principal challenges (no requirement of expert testimony, sufficiency of knowledge that material was sexually oriented, and constitutionality of § 1461). The opinion does not announce a novel precedent; it applies existing Supreme Court and Fifth Circuit precedents and states that most points raised on appeal were controlled adversely by those decisions.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ANTAR A. R. SULAIMAN, AND OVER 21 BOOK CLUB, INC., DEFENDANTS-APPELLANTS.

PER CURIAM:

This obscenity case, in conjunction with two others being decided today by this panel, arises from convictions obtained prior to the " Miller quintet" and our recent decisions in light thereof. The appeals were held pending the Supreme Court's disposition of Miller. Virtually every point made on this appeal is now controlled by these recent decisions adversely to appellants. We affirm.

United States v. New Orleans Book Mart, 490 F.2d 73 (5th Cir. 1974) [No. 71-2594]; United States v. Thevis, 490 F.2d 76 (5th Cir. 1974) [No. 72-2664].

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. Millican, 487 F.2d 331 (5th Cir. 1973); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973).

Antar Sulaiman and the Over 21 Book Club, Inc. were convicted under 18 U.S.C.A. § 1461 for knowingly using the mails for delivery of obscene advertisements and motion picture films to certain individuals.

(1) The Government does not have to introduce expert testimony in addition to the challenged material to prove the obscenity charge. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), citing with approval United States v. Groner, 479 F.2d 577 (5th Cir. 1973); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973).

(2) Defendants' knowledge that the material mailed is legally obscene is not required to prove a violation of 18 U.S.C.A. § 1461. Proof that the defendants knew that the material was sexually oriented is sufficient. United States v. Millican, 487 F.2d 331 (5th Cir. 1973). See United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973) ( 18 U.S.C.A. § 1462).

(3) Title 18 U.S.C.A. § 1461 is not unconstitutionally vague or overbroad. United States v. Cote, 485 F.2d 574 (5th Cir. 1973). See United States v. Millican, 487 F.2d 331 (5th Cir. 1973).

In addition to urging the nonworkability of a national standard in conjunction with the ex post facto effect of applying the Miller standards to this case, an argument which we answered adversely to defendants today in United States v. New Orleans Book Mart, 490 F.2d 73 (5th Cir. 1974) [No. 71-2594], they urge that the local community standard test enunciated in Miller does not apply to federal obscenity prosecutions. Defendants premise their argument on the fact that Miller was a state obscenity prosecution. This contention, however, was answered adversely to them in United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973):

In Orito, supra, and 12 200-Ft. Reels, supra, the Court made clear that this standard also applies to prosecutions under federal statutes. 484 F.2d at 1154.

In reply to Thevis and the intimations of United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) ( 18 U.S.C.A. § 1462), and United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) ( 19 U.S.C.A. § 1305), the defendants cite to what they term the prospective language of Footnote 7 in Twelve 200-Ft. Reels, 413 U.S. at 130, 93 S.Ct. 2665, and argue that local community standards are to be given prospective application only and cannot be the basis for a conviction had prior to June 21, 1973.

Relying on United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), however, we need not answer that question. We have reviewed the material under both the Memoirs and Miller tests and find the advertisements and films to be within the legal parameters of obscenity.

Affirmed.

UNITED STATES v. SULAIMAN