UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: September 2, 1982.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
JOHN S. LANGFORD, DEFENDANT-APPELLANT
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.
COFFEY, Circuit Judge.
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:
(a) Any person who --
(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 distribution for sale as required by 18 U.S.C. § 2252?
1. Community Standards of Obscenity.
In order to resolve whether it was appropriate for the district court to instruct the jury to apply the community standards of the sending jurisdiction in determining if the materials are obscene, we begin by reviewing the case law leading to the development of the "community standard" of obscenity.
Initially, we point out that "obscenity is not within the area of constitutionally protected speech or press." Roth v. United States, 354 U.S. 476, 485, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957); New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, 50 U.S.L.W. 5077, 5079 (U.S. July 2, 1982). Thus "obscene" speech can be prohibited or otherwise regulated without violating the prohibitions of the first amendment to the United States Constitution. To this date, the United States Supreme Court has limited the definition of obscenity to those materials which "taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."*fn3 Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Jenkins v. Georgia, 418 U.S. 153, 160, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974), quoting Miller v. California, 413 U.S. 15, 27, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); Smith v. United States, 431 U.S. 291, 301, 52 L. Ed. 2d 324, 97 S. Ct. 1756 (1977). The question of obscenity vel non, once the constitutional threshold is satisfied, is one of fact.*fn4 See, Miller, 413 U.S. at 30; Jenkins, 418 U.S. at 159.
The Supreme Court has expressly rejected, even when interpreting federal statutes, the view that the first and fourteenth amendments require uniform national standards of obscenity, describing such standards as "hypothetical and unascertainable."*fn5 Hamling v. United States, 418 U.S. 87, 104, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). It is clear that the community whose standards the jury must apply need not be precisely defined as the jury may be instructed to apply the standards of a "contemporary community" without further definition. Jenkins, 418 U.S. at 157. The community may also be defined by geographic terms such as the contemporary community standards of Mississippi or New York. Id.
In holding that contemporary community standards are to be applied in obscenity cases, the Supreme Court has emphasized that a juror's knowledge of the community in which he resides plays a vital role in the juror's reaching the judgment and findings that the average person in that community would reach in a given case. The Supreme Court stated that: "[a] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicarage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable ' person in other areas of law." Hamling, 418 U.S. at 104-105. The Court's reliance on a juror's ability to draw upon his own knowledge of the standards of his community is exemplified by the Court's holding "that the prosecution need not as a matter of constitutional law produce 'expert witnesses' to testify as to the obscenity of the materials [because of] the ability of the juror to ascertain the sense of the 'average ' person, applying contemporary community standards." Id. at 105.
The crime of which the defendant was convicted prohibited the mailing of obscene visual and printed material depicting minors engaging in sexually explicit conduct and thus consistent with the mandates of the United States Supreme Court the question of whether the material was obscene is to be determined by the application of "community standards." We point out, however, that under the recent decision of the United States Supreme Court in New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, 50 U.S.L.W. 5077 (U.S. 1982) Congress need not have required the material prohibited by § 2252 to be obscene in order to satisfy the first amendment protections of free speech. This is because in Ferber the Supreme Court decided that child pornography, like obscene materials, is excluded from the prohibitions of the first amendment.
New York v. Ferber involves a New York statute which, like § 2252, prohibited the sale or distribution of materials depicting children, under the age of 16, engaged in sexually explicit conduct but unlike § 2252, the New York statute did not require proof that the materials were obscene. The New York statute in question, Article 263, prohibited "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age," § 263.1. Section 263.3 defines sexual conduct:
'Sexual conduct ' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.
The Court recognized that:
The federal government and forty-seven states have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; twenty States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.
Ferber, 50 U.S.L.W. at 5078.
Prior to Ferber, it was presumed that child pornography like other sexually explicit material had to be determined obscene under the standards enunciated in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973) before denying first amendment protection to the sexually explicit material. The Miller standard was an accommodation between the state's interests in prohibiting the dissemination or exhibition of obscene materials and the freedom of speech interests protected by the first amendment. In Ferber, the Supreme Court examined the state's interest in prohibiting child pornography, and concluded that "the Miller standard is [not] a satisfactory solution to the child pornography problem." Id. at 5081. Instead, the Court said:
When a definable class of material [child pornography] such as that covered by [the New York statute] bears so heavily and pervasively on the welfare of the children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the first amendment.
the test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person, it is not required that sexual conduct portrayed be done so in a patently offensive manner, and the material at issue need not be considered as a whole.
Id. at 5082.
The distinction between the permissible scope of regulation under Ferber and Miller is demonstrated by contrasting § 2251 with § 2252. 18 U.S.C. § 2251 makes it a violation of the federal law "for anyone to use children under the age of 16 in the production of pornographic material [and] embraces all 'sexually explicit conduct ' without imposing an obscenity test." Id. at n.15.
On the other hand, Congress saw fit to include "obscenity" as an element necessary for a violation of § 2252. Thus, the inclusion of children under the age of 16 in the production of any sexually explicit material will violate § 2251, while the sexually explicit material must be found obscene in order to prove a violation of the more restrictive § 2252.
Ferber makes it clear that Congress could have prohibited the mailing of material depicting minors engaged in sexually explicit conduct without including obscenity as an element of the crime, by simply prohibiting the mailing of "works that visually depict sexual conduct by children below a certain age." Id. at 5082. However, since Congress did require proof of obscenity as an element of § 2252 and the appellant was convicted under the community standards set forth in Miller, we review the appellant's case under Miller's obscenity guidelines.
Having completed an overview of the case law establishing the "community standards" test of obscenity we now address the merits of the defendant's contention that the community standards of the sending jurisdiction were not the proper standards to apply in this case.
The appellant argues that the community standards of the receiving jurisdiction should have been applied in this case. He contends that jurors are only capable of applying the community standards of the community in which they reside. Thus, only jurors from the receiving jurisdiction could have applied the community standards of the receiving jurisdiction. The appellant concludes that he was deprived of his right of due process of law when the government chose, in his opinion, to improperly venue his case in the sending jurisdiction rather than in the receiving jurisdiction.
The appellant makes three arguments in support of the contention that the community standards of the receiving jurisdiction must be applied in his case. Initially, he offers a law review article, in which the authors argue that the community standards of the receiving jurisdiction must be applied in federal obscenity cases. The authors of the article assert that one objective of the federal obscenity statute is to assist local communities in their fight against the invasion of pornography. The authors theorize that applying the receiving jurisdiction's community standards would coincide with this objective and would result in one predictable variable in obscenity cases, the community standards of the receiving community. Waples and White, Choice of Community Standards in Federal Obscenity Proceedings: The Rule of the Constitution and the Common Law, 64 Va. L. Rev., 399, 434 (April, 1978).
Secondly, the appellant argues that the government sought to prove that the mailed materials were obscene by showing that the mailed materials were of a type appealing to pedophiliacs. Therefore, the appellant concludes that since the government chose to premise its proof of obscenity upon the character of the intended recipient of the materials (the pedophiliacs), the standards of the community wherein the intended recipients reside must necessarily be applied.
As a final point of argument, the appellant contends that § 2252 "seeks to protect the ultimate viewer of the material." Thus, the community standards of the community where the protected viewer resides are the standards which should be applied.
Initially, it is important to recognize that 18 U.S.C. § 3237(a) authorizes federal obscenity cases to be venued in either the sending jurisdiction, receiving jurisdiction, or any jurisdiction through which the mailed obscene material moves.*fn6 If we were to accept the appellant's argument that the receiving jurisdiction's community standards must be applied in federal obscenity cases, we could conceivably place an undue burden on our court system and build in error. The receiving jurisdiction's community standards could only be applied by either holding a separate trial for each receiving jurisdiction or by having one trial but requiring the jury to apply a separate and distinct community standard for each receiving jurisdiction. For example, the appellant's case involved three receiving jurisdictions, New York, Minnesota, and Pennsylvania. If the appellant's argument were accepted, one of the ways in which the receiving jurisdiction's standards could be applied would be to require the government to undertake the time and unnecessary expense of prosecuting this defendant in separate trials in each of the three receiving jurisdictions. This choice would result in three separate trials in three separate jurisdictions with three potential appeals, thus tripling the burden on our already overburdened court system. The second option would be to have one trial but to require the jury to apply three separate community standards; one for each of the communities into which the appellant is charged with sending the obscene material. This would require evidence at trial of each of the three receiving jurisdiction's community standards, forcing the jury to apply an already complex obscenity statute to not one, but three communities -- a defense attorney's dream of built-in error.*fn7 Defendants would be able to convincingly argue that their due process rights were violated by convictions handed down by juries placed in the difficult position of having to apply and differentiate between the separate and distinct community standards.
We interpret the defendant's argument that the community standard of the sending jurisdiction is not the proper standard to apply in determining if the mailed photographs were obscene as an attack on the validity of 18 U.S.C. § 3237(a) as it applies to forum selection in federal obscenity cases brought under 18 U.S.C. § 2251, et seq.*fn8 He contends that § 2252 seeks to protect the ultimate viewer of the material and therefore necessitates application of community standards where the viewer resides.
Our examination of the appellant's attack on 18 U.S.C. § 3237(a) necessarily begins with an examination of 18 U.S.C. § 2251, et seq., the act under which the appellant was convicted, entitled "The Protection of Children Against Sexual Exploitation Act of 1977." The title of § 2252, "Certain activities relating to material involving the sexual exploitation of minors" makes clear Congress' broad concern that:
The [Federal] Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce. . . . 'It is sufficient to reiterate the well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature. ' United States v. Orito, 413 U.S. 139, 143-44, 37 L. Ed. 2d 513, 93 S. Ct. 2674 (citation omitted).
It is clear that the United States government's interest in protecting minors from sexual exploitation in the highly organized, multi-million dollar industry of child pornography and child prostitution, which operates on a nationwide scale, reaches beyond merely controlling the production of the obscene materials and includes each and every aspect of the illicit pornographic scheme. The distribution and sale of these materials is nothing more than the fruition of the process of the children's exploitation. The Supreme Court recently noted that:
the distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market of this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.
It is evident beyond the need for elaboration that a state's interest in 'safeguarding the physical and psychological well being of a minor ' is 'compelling. ' Globe Newspapers v. Superior Court, 457 U.S. 596, , 102 S. Ct. 2613, 2621, 73 L. Ed. 2d 248 (1982). 'A democratic society rests, for its continuance, upon the healthy well-rounded growth of young people into full maturity as citizens. ' Prince v. Massachusetts, 321 U.S. 158, 168, 88 L. Ed. 645, 64 S. Ct. 438 (1944).
Ferber, 50 U.S.L.W. at 5080-81. This necessitates the rejection of the appellant's ridiculous contention that § 2252 of the Act is merely geared towards the protection of the viewers of the material, a position which defies both law and common sense.
We also recognize the interest and the concern of the citizens of the sending jurisdiction that it not become the platform and a staging center for the sale and/or the distribution for sale of obscene materials. The use of local community standards reinforces the right of citizens to keep their respective communities free of obscene materials by allowing the residents of a community to decide for themselves what will or will not be considered obscene in their local community. The Supreme Court has stated that it is neither realistic nor constitutionally sound to read the first amendment as requiring the people of Maine or Mississippi to accept the type of conduct found tolerable in San Francisco, Las Vegas, or New York City. Miller, 413 U.S. at 32. In the present state of the law, citizens of Wisconsin cannot be required to accede to the community standards of New York, Minnesota or Pennsylvania merely because Wisconsin is the sending jurisdiction and the other communities are the receiving jurisdiction.*fn9
Congress' decision to allow cases such as the one at bar to be venued in either the sending or receiving jurisdiction demonstrates that § 2252 was intended to protect the inhabitants of the sending jurisdiction from being the situs of the production and distribution of pornographic materials to the same extent that it protects the receiving community from the receipt of those materials. The sending jurisdiction's interest in assuring that it is not the point of origination of obscene materials, justifies our conclusion that venuing the action in the sending jurisdiction did not violate the defendant's right to due process. Further, the venuing of the action in the sending jurisdiction forwards the interest in judicial economy by limiting the number of trials and in reality affords the defendant consistent treatment under the law because all of the visual material will not be judged separately under the potentially inconsistent standards of each of the receiving jurisdictions.
We hold that this case was properly venued in Wisconsin and that the district court properly instructed the jury to apply the community standards of the average person residing in the State of Wisconsin.
2. Mailing for Purpose of Sale or Distribution.
The appellant challenges his conviction on Count IV, arguing that mailing negatives to a photography laboratory in Philadelphia, Pennsylvania, for the purpose of processing the negatives into photographs cannot violate § 2252 as that statute only prohibits mailing obscene materials "for the purpose of sale or distribution for sale." The appellant's argument rests solely on the wording of the statute.
The appellant argues that he did not sell the negatives to the photography laboratory, therefore he does not come within the purview of the statute.*fn10 18 U.S.C. § 2252 does not require the prosecution to prove that the appellant mailed obscene material with the intent to make a sale to the photography laboratory in Philadelphia. Rather, the statute uses the broader term "purpose", which encompasses and prohibits any future plan or scheme of the commercial pornographer to sell or distribute the obscene prints for sale.
The appellant further argues that Congress did not intend that § 2252 prohibit one from sending obscene negatives to a photography laboratory for processing into prints. However, our review of the legislative history of the pornography statutes shows that Congress was concerned with the overall chain of commercial pornography,*fn11 from the taking of the obscene pictures, the processing of the prints,*fn12 to the ultimate sale of the obscene prints and that Congress clearly intended that § 2251 et seq. eradicate the entire commercial chain involved in the production, distribution and sale of child pornography.*fn13
It is obvious, from the quotation below, that the appellant was a part of a commercial chain of child pornography at the time the appellant mailed his negatives to Philadelphia and requested a special price due to his volume:
I am a dealer using 800 to 1500 prints a month, 3 1/2 by 5, silk tone-borderless. I order 10 prints each neg. at a time, usually 10-20-50 negs per order. Now if you can drop your prices, I will give you some business -- J. Langford, 201 North Street, Madison, Wisconsin.
In light of the fact that the appellant contemplated ordering 800 to 1500 obscene prints per month, it strains reason and credibility to believe that the appellant had any intent other than the purpose of sale or distribution for sale. Certainly this large volume of obscene material was not ordered for his personal use.
We hold it is clear that Congress intended to wipe out the entire spectrum of child pornography and in doing so saw fit to broaden the scope of the legislation through the use of the term "purpose." A term intended to include each and every aspect of the business enterprise of peddling filth. Congress intended the mailing of obscene negatives, in this case the second phase of a four-phase commercial pornography scheme prior to the ultimate sale, to be encompassed within the parameters of the statutory prohibition contained in § 2252.
The decision of the district court is AFFIRMED.
WOOD, Circuit Judge, concurring.
Having no doubts about the option of the government to prosecute in Wisconsin where the mailings originated, rather than in Minnesota, New York and Pennsylvania where received, and having no doubts about the mailing of film to a laboratory for processing and the return of negatives to the sender as qualifying under the statute, I gladly join the majority in affirming this conviction for the defendant's use of the mails to further his miserable business.
PELL, Circuit Judge, concurring.
I join in Judge Wood's concurrence.