U.S. Supreme Court

HAMLING v. UNITED STATES, 418 U.S. 87 (1974)

418 U.S. 87

HAMLING ET AL. v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 73-507.

Argued April 15, 1974.

Decided June 24, 1974.

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, 492 . Pp. 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. 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. 100-101.

4. The standards established in the Miller cases do not, as applied to petitioners' pre-Miller conduct, require a reversal of their convictions. Pp. 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. 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 "statewide" 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. 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, 353 . Pp. 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

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

5. The indictment was sufficiently definite. Pp. 117-119.

(a) The language of 1461 was not "too vague to support conviction for crime," Roth v. United States, supra, at 480. P. 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. 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. 119-124.

7. The Court of Appeals correctly concluded that there was substantial evidence to support the jury's verdict. P. 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. 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, 508 -509. Pp. 127-130.

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. 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. 131-135.

12. Petitioners' 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. 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. 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. 140. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 141.

Stanley Fleishman argued the cause for petitioners Hamling et al. With him on the briefs was Sam Rosenwein. Mr. Rosenwein argued the cause for petitioners Kemp et al. With him on the briefs were Mr. Fleishman and Louis S. Katz.

Allan Abbott Tuttle argued the cause for the United States. With him on the brief were Solicitor General

Bork, Assistant Attorney General Petersen, Jerome M. Feit, and Shirley Baccus-Lobel.^{Footnote *}

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

On March 5, 1971, a grand jury in the United States District Court for the Southern District of California indicted petitioners William L. Hamling, Earl Kemp, Shirley R. Wright, David L. Thomas, Reed Enterprises, Inc., and Library Service, Inc., on 21 counts of an indictment charging use of the mails to carry an obscene book, The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained, and of conspiracy to commit the above offenses, in violation of 18 U.S.C. 2, 371, and 1461.[^{Footnote 1} ] Prior to trial, petitioners moved to dismiss the indictment on the grounds that it failed to inform them of the charges, and that the grand jury had insufficient evidence before it to return an indictment and was improperly instructed on the law. Petitioners also challenged the petit jury panel and moved to strike the venire on the ground that there had been an unconstitutional exclusion of all persons under 25 years of age. The District Court denied all of these motions.

Following a jury trial, petitioners were convicted on 12 counts of mailing and conspiring to mail the obscene

advertisement.[^{Footnote 2} ] On appeal, the United States Court of Appeals for the Ninth Circuit affirmed.  481 F.2d 307 (1973). The jury was unable to reach a verdict with regard to the counts of the indictment which charged the mailing of the allegedly obscene Illustrated Report.[^{Footnote 3} ] The advertisement found obscene is a single sheet brochure mailed to approximately 55,000 persons in various parts of the United States; one side of the brochure contains a collage of photographs from the Illustrated Report; the other side gives certain information and an order blank from which the Illustrated Report could be ordered.

The Court of Appeals accurately described the photographs in the brochure as follows:

"The folder opens to a full page splash of pictures portraying heterosexual and homosexual intercourse, sodomy and a variety of deviate sexual acts. Specifically, a group picture of nine persons, one male engaged in masturbation, a female masturbating two

males, two couples engaged in intercourse in reverse fashion while one female participant engages in fellatio of a male; a second group picture of six persons, two males masturbating, two fellatrices practicing the act, each bearing a clear depiction of ejaculated seminal fluid on their faces; two persons with the female engaged in the act of fellatio and the male in female masturbation by hand; two separate pictures of males engaged in cunnilinction; a film strip of six frames depicting lesbian love scenes including a cunnilinguist in action and female masturbation with another's hand and a vibrator, and two frames, one depicting a woman mouthing the penis of a horse, and a second poising the same for entrance into her vagina." 481 F.2d, at 316-317.[^{Footnote 4} ]

The reverse side of the brochure contains a facsimile of the Illustrated Report's cover, and an order form for the Illustrated Report. It also contains the following language:

"THANKS A LOT, MR. PRESIDENT. A monumental work of research and investigation has now become a giant of a book. All the facts, all the statistics, presented in the best possible format . . . and . . . completely illustrated in black and white and full color. Every facet of the most controversial public report ever issued is covered in detail.