US SUPREME COURT DECISIONS

Petitioners were convicted of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version (hereafter Illustrated Report) of an official report on obscenity, in violation of 18 U.S.C. §§ 2, 371, and 1461. The indictment under § 1461 charged petitioners in the language of the statute, which provides in pertinent part that obscene material and written information as to where it may be obtained is nonmailable, and that "[w]hoever knowingly uses the mails for the mailing . . . of anything declared by this section . . . to be nonmailable . . ." commits a crime. The jury was unable to reach a verdict on the counts charging the mailing of the allegedly obscene Illustrated Report. Following affirmance of the convictions by the Court of Appeals, this Court decided Miller v. California, 413 U. S. 15, and companion cases (hereafter collectively the Miller cases), after considering which, the Court of Appeals denied a petition for rehearing. Petitioners challenge their convictions based upon the pre-Miller obscenity test in Memoirs v. Massachusetts, 383 U. S. 413, and also as failing to meet the standards of the Miller cases; and challenge various procedural and evidentiary rulings of the District Court, as well as its instructions.

Held:

1. Title 18 U.S.C. § 1461,

"applied according to the proper standard for judging obscenity, do[es] not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited,"

Roth v. United States, 354 U. S. 476, 354 U. S. 492. Pp. 418 U. S. 98-99.

2. The jury's determination that the brochure was obscene was supported by the evidence, and was consistent with the Memoirs obscenity formulation. P. 418 U. S. 100.

3. The inability of the jury to reach a verdict on the counts charging distribution of the Illustrated Report had no relevance to its finding that the brochure was obscene, consistency in verdicts not being required, and the brochure being separable from the Illustrated Report. Pp. 418 U. S. 100-101. chanrobles.com-red

Page 418 U. S. 88

4. The standards established in the Miller cases do not, as applied to petitioners' pre-Miller conduct, require a reversal of their convictions. Pp. 418 U. S. 101-117.

(a) Defendants like petitioners, who were convicted prior to the decisions in the Miller cases but whose convictions were on direct appeal at that time, should receive any benefit available to them from those decisions. Pp. 418 U. S. 101-102.

(b) The instruction to the jury on the application of national community standards of obscenity was not constitutionally improper, since, in rejecting the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform national standards, the Court in the Miller cases did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of the "average person, applying contemporary community standards." The Court's holding in Miller that California could constitutionally proscribe obscenity in terms of a "state-wide" standard did not mean that any such precise geographic area is required as a matter of constitutional law. Reversal is required in pre-Miller cases 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. Pp. 418 U. S. 103-110.

(c) Construing 18 U.S.C. § 1461 as being limited to the sort of "patently offensive representations or descriptions of that specific hard core' sexual conduct given as examples in Miller v. California," the statute is not unconstitutionally vague, it being plain that the brochure is a form of hard-core pornography well within the permissibly proscribed depictions described in Miller. The enumeration of specific categories of obscene material in Miller did not purport to proscribe, for purposes of 18 U.S.C. § 1461, conduct that had not previously been thought criminal, but instead added a "clarifying gloss" to the prior construction, making the statute's meaning "more definite." Bouie v. City of Columbia. 378 U. S. 347, 378 U. S. 353. Pp. 418 U. S. 110-116.

(d) Miller's rejection of Memoirs' "social value" formulation did not mean that 18 U.S.C. § 1461 was unconstitutionally vague at the time of petitioners' convictions because it did not provide them with sufficient guidance as to the proper test of "social value," that formula having been rejected not for vagueness chanrobles.com-red

Page 418 U. S. 89

reasons but because it departed from Roth's obscenity definition and entailed a virtually impossible prosecutorial burden. Pp. 418 U. S. 116-117.

5. The indictment was sufficiently definite. Pp. 418 U. S. 117-119.

(a) The language of § 1461 was not "too vague to support conviction for crime," Roth v. United States, supra, at 354 U. S. 480. P. 418 U. S. 117.

(b) The indictment gave petitioners adequate notice of the charges against them, since, at the time petitioners were indicted, the statutory term "obscene," a legal term of art and not a generic expression, had a definite legal meaning. Russell v. United States, 369 U. S. 749, distinguished. Pp. 418 U. S. 117-119.

6. The District Court did not err in its instructions to the jury on scienter, including its instruction that "[petitioners'] belief as to the obscenity or non-obscenity of the material is irrelevant," it being constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of materials that he distributes, and that he knew the character and nature of the materials. Rosen v. United States, 161 U. S. 29, followed; Smith v. California, 361 U. S. 147, distinguished. Pp. 418 U. S. 119-124.

7. The Court of Appeals correctly concluded that there was substantial evidence to support the jury's verdict. P. 418 U. S. 124.

8. The District Court did not abuse its discretion in excluding allegedly comparable materials (materials with second-class mailing privileges, or judicially found to have been nonobscene, or available on newsstands), since, inter alia, expert testimony had been allowed on relevant community standards; and similar materials or judicial determinations with respect thereto do not necessarily prove nonobscenity of the materials the accused is charged with circulating; and with respect to whether proffered evidence is cumulative, clearly relevant, or confusing, the trial court has considerable latitude. Pp. 418 U. S. 125-127.

9. The District Court's instruction that, in deciding whether the predominant appeal of the brochure was to a prurient interest in sex, the jury could consider whether some portions appealed to a specifically defined deviant group as well as to the average person was not erroneous, since, in measuring prurient appeal, the jury (which was instructed that it must find that the material as a whole appealed generally to a prurient interest in sex) may consider the material's prurient appeal to clearly defined deviant sexual groups. Mishkin v. New York, 383 U. S. 502, 383 U. S. 508-509. Pp. 418 U. S. 127-130. chanrobles.com-red

Page 418 U. S. 90

10. Since evidence of pandering can be relevant in determining obscenity, as long as the proper constitutional definition of obscenity is applied, Ginzburg v. United States, 383 U. S. 463, it was not improper for the District Court to instruct the jury in connection with the Memoirs test that it could also consider whether the brochure had been pandered by looking to the manner of its distribution and editorial intent. Pp. 418 U. S. 130-131.

11. The Court of Appeals did not err in refusing to reverse petitioners' convictions for the District Court's failure to comply with Fed.Rule Crim.Proc. 30 by denying petitioners' counsel's request to make additional objections to the instructions out of the presence of the jury, since this Court's independent examination of the record confirms the Court of Appeals' view that petitioners were not prejudiced thereby. Pp. 418 U. S. 131-135.

12. Petitioner' argument that the District Court abused its discretion in refusing to grant a continuance until a new jury with a presumably greater ratio of young people could be drawn -- it having been almost four years since the jury wheel had last been filled -- is without merit, since there was no showing of a discriminatory exclusion of an identifiable group entitled to a group-based protection. Pp. 418 U. S. 135-138.

13. The District Court's voir dire examination was sufficient to test the qualifications and competency of the prospective jurors, and complied with Fed.Rule Crim.Proc. 24(a), and that court did not constitutionally err in not asking certain questions propounded by petitioners. Pp. 418 U. S. 138-140.

481 F.2d 307, affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 418 U. S. 140. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 418 U. S. 141. chanrobles.com-red

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