UNITED STATES of America, Plaintiff-Appellee, v. Antar A. R. SULAIMAN, and Over 21 Book Club, Inc., Defendants-Appellants

United States Court of Appeals for the Fifth Circuit1974-02-19No. No. 71-3145

490 F.2d 78

Summary · law.co

Holding. The court affirmed the convictions, holding that the defendants' convictions under federal obscenity law were proper under the Miller standard and related Supreme Court precedent, and that the government was not required to prove the defendants knew the materials were legally obscene, only that they knew the materials were sexually oriented.

Antar Sulaiman and the Over 21 Book Club, Inc. were convicted of using the mails to distribute obscene advertisements and films in violation of federal law. On appeal, the defendants challenged their convictions on multiple grounds, including arguments that expert testimony was required to prove obscenity, that they must have known the materials were legally obscene (not merely sexually oriented), and that the federal statute was unconstitutionally vague or overbroad. They also contended that the local community standards test established in Miller v. California should not apply to federal prosecutions and should not apply retroactively to conduct predating the Miller decision.

The court rejected all of these arguments as controlled by recent Supreme Court precedent and circuit decisions interpreting that precedent. The court confirmed that the government need not present expert testimony beyond the materials themselves, that knowledge of sexual content suffices without knowledge of legal obscenity, and that the statute is neither vague nor overbroad. The court further held that local community standards do apply to federal obscenity prosecutions. The court reviewed the challenged materials under both the older Memoirs test and the newer Miller standard and determined that the materials satisfied the legal definition of obscenity under both frameworks, making the retroactivity question unnecessary to resolve.

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 obscenity in federal prosecutions
Whether defendants must know materials are legally obscene or only sexually oriented
Whether local community standards from Miller v. California apply to federal obscenity statutes
Whether federal obscenity statute is unconstitutionally vague or overbroad

Procedural posture

The appeal was pending decision pending the Supreme Court's resolution of Miller v. California, and the panel decided this case in conjunction with related obscenity cases applying the newly established Miller framework.

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.

Antar Sulaiman and the Over 21 Book Club, Inc. were convicted under 18 U.S. C.A. § 1461 for knowingly using the mails for delivery of obscene advertisements and motion picture films to certain individuals.

(1) The Government does not have to introduce expert testimony in addition to the challenged material to prove the obscenity charge. 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) Defendants’ knowledge that the material mailed is legally obscene is not required to prove a violation of 18 U.S.C.A. § 1461. Proof that the defendants knew thatthe material was sexually oriented is sufficient. United States v. Millican, 487 F.2d 331 (5th Cir. 1973). See United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973) (18 U.S.C.A. § 1462).

(3) Title 18 U.S.C.A. § 1461 is not unconstitutionally vague or overbroad. United States v. Cote, 485 F.2d 574 (5th Cir. 1973). See United States v. Millican, 487 F.2d 331 (5th Cir. 1973).

In addition to urging the nonworkability 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 urge that the local community standard test enunciated in Miller does not apply to federal obscenity prosecutions. Defendants premise their argument on the fact that Miller was a state obscenity prosecution. This contention, however, was answered adversely to them in United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973):

In Orito, supra, and 12 200-Ft. Reels, supra, the Court made clear that this standard also applies to prosecutions under federal statutes. 484 F.2d at 1154.

In reply to Thevis and the intimations of United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (18 U.S.C.A. § 1462), and 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) (19 U.S.C.A. § 1305), the defendants cite to what they term the prospective language of Footnote 7 in Twelve 200-Ft. Reels, 413 U.S. at 130, 93 S.Ct. 2665, and argue that local community standards are to be given prospective application only and cannot be the basis for a conviction had prior to June 21, 1973.

Relying on United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), however, we need not answer that question. We have reviewed the material under both the Memoirs and Miller tests and find the advertisements and films 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. Thevis, 490 F.2d 76 (5th Cir. 1974) [No. 72-2664].

. 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).