UNITED STATES of America, Plaintiff-Appellee, v. Michael G. THEVIS, Gary Van Gundy and Rivergate News Agency, Inc., Defendants-Appellants

United States Court of Appeals for the Fifth Circuit1974-02-19No. No. 72-2664

490 F.2d 76

Summary · law.co

Holding. The court affirmed the convictions, holding that all of the defendants' arguments were foreclosed by recent Supreme Court decisions establishing the Miller test for obscenity and that the materials in question qualified as legally obscene under that standard.

Michael Thevis, Gary Van Gundy, and Rivergate News Agency, Inc. were convicted of violating federal law by using interstate carriers to transport obscene materials. On appeal, the defendants challenged their convictions on multiple grounds, including claims that expert testimony was necessary to prove obscenity, that jury instructions should have referenced a national standard, that they lacked sufficient knowledge of the materials' legal status, and that the statute was unconstitutionally vague and overbroad.

The court rejected all of these challenges in light of recent Supreme Court precedent, particularly the Miller test for obscenity. The court held that expert testimony is not required; that a community standard rather than a national standard applies; that defendants need only know the sexual nature of the materials, not their legal classification as obscene; and that the statute is neither vague nor overbroad. The court also found that the indictment provided adequate notice of the charges and that the trial judge properly excluded comparable evidence. Upon review of the transported materials under both prior and current obscenity standards, the court determined they fell within the legal definition of obscenity.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether expert testimony is required to establish that material is obscene
Whether jury instructions must reference a national versus community standard for obscenity
Whether defendants must know materials are legally obscene or only know their sexual nature
Whether the federal obscenity statute is unconstitutionally vague or overbroad

Procedural posture

The defendants appealed their convictions for transporting obscene materials via interstate carriers in violation of federal law, with the appeal held pending the Supreme Court's decision in Miller v. California.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

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.

Thevis, Van Gundy, and The River-gate News Agency, Inc. were convicted for using a common carrier for interstate transportation of obscene material in violation of 18 U.S.C.A. § 1462.

(1) Expert testimony is not required to uphold a determination that the transported material is obscene. 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) Failure of the court to charge the jury specifically as to the national standard for determining the obscenity of the material was not error in view of the newly enunciated community standard test. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L. Ed.2d 500 (1973); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973).

(3) Scienter by the defendants that the transported materials are legally obscene is not required for conviction under 18 U.S.C.A. § 1462. Defendants’ knowledge of the materials’ sexual orientation is sufficient. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L. Ed.2d 513 (1973); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973).

(4) Title 18 U.S.C.A. § 1462 is neither unconstitutionally vague or over-broad. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1149 (1957); United States v. Thevis, 484 F. 2d 1149 (5th Cir. 1973).

In addition to urging the non-workability 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 contend it was error for the trial judge to disallow comparable evidence. If expert testimony is not required to determine obscenity, it is certainly within the trial judge’s discretion not to allow comparable evidence.

The defendants also urge that due to the inherent vagueness of a national obscenity standard, as discussed in Miller, 413 U.S. at 20, the indictment, by tracking 18 U.S.C.A. § 1462, did not sufficiently advise them of the charge against them. This contention, however, was answered adversely to them in United States v. Thevis, 484 F.2d 1149, 1152 (5th Cir. 1973).

Following Thevis, we have reviewed “L’Affair, No. 7,” and “Wild Sexual Compulsions” under both the Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and the Miller tests and find them to be within the legal parameters of obscenity.

Affirmed.

. United States v. New Orleans Book Mart, 490 F.2d 73 (5th Cir. 1974) [No. 71-2594] ; United States v. Sulaiman, 490 F.2d 78 (5th Cir. 1974) [No. 71-3145].

. 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).