Appeal from the United States District Court for the Western District of Wisconsin. No. 81 CR 17 -- Barbara B. Crabb, Judge.
Pell, Wood, and Coffey, Circuit Judges. Wood, Circuit Judge, concurring. Pell, Circuit Judge, concurring.
This is an appeal from a judgment of conviction entered in the United States District Court for the Western District of Wisconsin, Barbara B. Crabb, Judge. The defendant was convicted on three counts of violating 18 U.S.C. § 2252 with knowingly sending through the U.S. Mails obscene visual and printed material depicting minors engaging in sexually explicit conduct after the jury was instructed to apply the community standards of the jurisdiction from which the materials were mailed (sending jurisdiction) in determining if the materials are obscene. The conviction is also based upon the district court's determination that the mailing of obscene negatives to a photography laboratory for developing is a mailing of obscene visual or print material for the purpose of sale or distribution for sale within the parameters of § 2252.
The appellant was convicted of violating 18 U.S.C. § 2252 with knowingly mailing obscene photographs and negatives for the purpose of sale and distribution to an undercover postal inspector in Chanhassen, Minnesota, and in New York City, New York, as well as to a photography laboratory in Philadelphia, Pennsylvania.*fn1 18 U.S.C. § 2252 provides in pertinent part:
(1) knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium, if --
(A) the producing of such visual or print medium involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual or print medium depicts such conduct; . . .
shall be punished as provided in subsection (b) of this section.
Initially, the appellant argued that he was denied a fair trial and moved to dismiss the indictment on grounds that the counts charged*fn2 were improperly venued in the Western District of Wisconsin and that a jury composed of persons residing in the Western District of Wisconsin would be unable to determine whether the materials allegedly mailed by the defendant violated the community standards of obscenity in the jurisdictions receiving the materials. The district court denied the defendant's motion and held that the case was properly venued in the Western District of Wisconsin pursuant to 18 U.S.C. § 3237(a) which provides in part:
Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by an enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves. (Emphasis added)
The defendant further requested that the jury be instructed to apply the standards of the receiving communities in determining whether the materials sent through the mail were obscene. The district court denied the defendant's request and instructed the jury that:
To determine whether an item is obscene, you must ask yourself three questions: (1) Would an average person applying contemporary community standards find that a photograph or negative, taken as a whole, appeals to the prurient interest; (2) Would the average person applying contemporary community standards find the photograph or negative depicts in a patently offensive way sexual conduct specifically defined by applicable law; and (3) Does the photograph or negative, taken as a whole, lack serious literary, artistic, political or scientific value? If the answer to all questions is yes, then the photograph or negative is obscene. To determine how 'the average person applying contemporary community standards' would consider the first two parts of the test, you're entitled to draw on your own knowledge of the views of the average person who resides in the State of Wisconsin.
In determining whether there is an appeal to the prurient interest, you may consider whether any of the photographs, including those developed from the negatives, would appeal to the prurient interest of pedophiliacs, persons essentially stimulated by sexual imagery of young people. An appeal to the prurient interest is an appeal to a morbid interest in sex as distinguished from a candid interest in sex
The defendant has not been charged with employing, using, persuading, inducing, enticing, or coercing any minor to engage in any of the acts depicted in the material which he is alleged to have mailed; and the circumstances giving rise to the production of the material should not be considered by you, nor should they enter into your deliberations in any manner. . . . (Emphasis added)
The jury returned a verdict of guilty. The defendant was convicted on three counts of violating 18 U.S.C. § 2252 and was sentenced to a term of imprisonment of three years on each count with the sentences ordered to be served consecutively.
Issue 1: Was it error for the district court to instruct the jury to apply the community standards of the sending jurisdiction rather than the receiving jurisdiction in determining if the materials are obscene?
Issue 2: Was the mailing of obscene negatives to a photography laboratory for developing under the facts of this case a mailing of obscene visual or print material for the purpose of sale or ...