418 U.S. 87 (1974)
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 charging use of the mails to carry an obscene book and an obscene advertisement, and conspiracy in violation of 18 U.S.C. §§ 2, 371, and 1461.1 The advertisement was a single sheet brochure mailed to approximately 55,000 persons in various parts of the United States.2 One side of the brochure contained a collage of photographs from the Illustrated Report portraying heterosexual and homosexual intercourse, sodomy, and a variety of deviate sexual acts.3 The other side gave information and an order blank from which the Illustrated Report could be ordered.4 The District Court denied petitioners' pretrial motions to dismiss the indictment and to strike the venire.5
The mailing of the brochures was accomplished by petitioners through the use of other businesses.6 Approximately 55,000-58,000 of these brochures were placed in envelopes and postage was affixed by Richard and Venita Harte, who operate the Academy Addressing and Mailing Service.7 The brochures and the Pitney-Bowes meter number were supplied by Bernard Lieberman of Regent House, Inc., of North Hollywood, California, who on January 11, 1971, had paid the United States Postal Service to set $3,300 worth of postage on the meter number.8 Regent House was billed $541.15 by the Hartes for their services and in turn charged Reed Enterprises, Inc., which paid the bill on January 19, 1971, with a check signed by petitioner Hamling.9
Those responding to the brochure would be sent copies of the Illustrated Report.10 The copies would be mailed with postage affixed by a second Pitney-Bowes meter number installed at Library Service, Inc.11 The evidence indicated that the individual petitioners were officers in the corporate petitioners.12 They were involved with selling the Illustrated Report, which entailed mailing out the advertising brochure.13 Petitioner Hamling, as president of Reed Enterprises, Inc., signed the check in payment to Regent House.14 Petitioner Kemp was the editor of the Illustrated Report and vice president of Library Service, Inc., and signed the application for the post office box in San Diego.15 Petitioner Thomas signed the rental agreement for the postage meter used in sending copies of the Illustrated Report.16 Petitioner Wright was the secretary of Reed Enterprises, Inc., and Greenleaf Classics, Inc., and assisted in obtaining Kemp's signature on the post office box application.17
At trial the jury convicted the petitioners on December 23, 1971, on 12 counts of mailing and conspiring to mail the obscene advertisement.18 The jury was unable to reach a verdict with regard to the counts charging the mailing of the allegedly obscene Illustrated Report.19 The Court of Appeals for the Ninth Circuit affirmed the convictions.20 The Supreme Court granted certiorari to review the case.21
Whether the brochure was obscene under the Memoirs plurality test?22
Under the Memoirs plurality test, material is obscene only if (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex, (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and (3) the material is utterly without redeeming social value.23
Yes. The jury viewed the brochure's collage of explicit photographs depicting heterosexual and homosexual intercourse, sodomy, and deviate sexual acts and was entitled to conclude that the dominant theme appealed to a prurient interest, that the depictions were patently offensive under national standards then in force, and that the brochure lacked redeeming social value, especially since the jury was not required to accept petitioners' expert testimony to the contrary.24
The brochure was obscene under the Memoirs plurality test, and the convictions on the advertising counts are sustained.25
Related opinions on this issue
Justice Douglas dissented. He observed that the President's Commission on Obscenity and Pornography issued its official report in 1970.26 Petitioners supplied that report with a visual glossary rather than dictionary definitions.27
Every item in the glossary depicted explicit sexual material discussed in the report itself.28 Douglas concluded that the First Amendment protects the people's right to know about sex and permits factual illustration of the subjects addressed in an official government document.29 If officials may constitutionally report on obscenity, nothing in the First Amendment allows barring the use of a glossary factually to illustrate what the report discusses.30
Whether convictions obtained under pre-Miller standards must be reversed after Miller v. California?31
A change in the law occurring after a relevant event in a case will be given effect while the case is on direct review. Any constitutional principle enunciated in Miller that would serve to benefit petitioners must be applied in their case.32
No. Although petitioners were tried and convicted under the Memoirs formulation, the Court examined the judgment in light of Miller principles. The convictions remain valid because the brochure constitutes hard-core pornography well within the types of depictions that Miller permits to be proscribed.33
The convictions need not be reversed merely because they were obtained under pre-Miller standards.34
Whether jury instructions referencing national community standards require reversal?35
Jury instructions are to be judged as a whole. Reversal is required only where there is a probability that the excision of references to national standards would have materially affected the deliberations of the jury.36
No. Although the District Court's instructions occasionally referenced national standards, which Miller later disapproved, the references accomplished the core purpose of preventing the jury from applying personal or hypersensitive standards. Examination of the record shows no probability that the outcome would have differed had the references been removed.37
The references to national standards do not require reversal of the convictions.38
Related opinions on this issue
Joined by Justice Stewart, Justice Marshall
Justice Brennan dissented. He emphasized that the trial judge referred to national standards no fewer than eighteen times and made them the central criterion for judging the brochure.39 The judge also excluded the Carlsen survey of San Diego residents solely because it addressed only local rather than national standards.40
Brennan concluded that petitioners were convicted on a charge wholly different from the one on which they were tried.41 They were denied any opportunity to present evidence or shape a defense keyed to local community standards, violating due process under Saunders v. Shaw.42
Whether 18 U.S.C. § 1461 is unconstitutionally vague as applied to petitioners?43
A statute is not unconstitutionally vague if it conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Miller's examples of hard-core sexual conduct supply a clarifying gloss that makes the meaning of § 1461 more definite.44
No. Prior decisions had upheld § 1461 against vagueness challenges. The brochure's explicit depictions of specific sexual acts, including group intercourse, fellatio, cunnilingus, and bestiality, fall squarely within the hard-core categories Miller identified. Petitioners therefore had fair notice that the material was within the statute's reach.45
Section 1461 is not unconstitutionally vague as applied to petitioners.46
Whether the indictment sufficiently informed petitioners of the charges against them?47
An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge, and enables the defendant to plead an acquittal or conviction in bar of future prosecutions. It is generally enough to set forth the offense in the words of the statute itself when those words fully and directly set forth all necessary elements.48
Yes. The indictment tracked the language of § 1461 and adequately informed petitioners of the charges because the legal definition of obscenity is a term of art sufficiently definite to give notice. The component parts of the constitutional definition need not be alleged in the indictment.49
The indictment was sufficient.50
Whether the scienter instruction requiring only knowledge of the character of the materials was proper?51
It is constitutionally sufficient that the prosecution show a defendant had knowledge of the contents of the materials distributed and knew their character and nature. Proof that the defendant knew the materials were legally obscene is not required.52
Yes. The District Court's instruction that petitioners must have known the character of the materials but that their belief as to obscenity was irrelevant correctly stated the scienter requirement under Rosen and Mishkin. The evidence showed petitioners were aware of the mail solicitation scheme and the contents of the brochure.53
The scienter instruction was proper.54
Whether the District Court abused its discretion in excluding evidence of comparable materials?55
The District Court has wide discretion in admitting or excluding evidence. The mere availability of similar materials does not automatically make them admissible to prove non-obscenity. The court may reject evidence that would tend to confuse the jury.56
No. The District Court properly excluded the proffered comparable materials because they would have created more confusion than enlightenment for the jury. The court permitted petitioners' four expert witnesses to testify extensively concerning community standards instead. This approach satisfied the need for relevant evidence on the issue while avoiding a deluge of confusing exhibits that lacked demonstrated probative value.57
The District Court did not abuse its discretion.58
Whether the exclusion of persons under age 25 from the jury venire violated petitioners' rights?59
A jury-selection plan that periodically refills the master wheel from voter lists does not constitute purposeful systematic exclusion. This holds even when the wheel becomes progressively outdated before the next refilling, provided the plan is not discriminatory when updated.60
No. Petitioners failed to establish a prima facie case of purposeful discrimination against young adults. The slight delay in updating the wheel was a reasonable accommodation of the practical problems of judicial administration that Congress may permissibly allow. No evidence showed that young persons would have been included but for systematic exclusion.61
The exclusion of persons under age 25 did not violate petitioners' rights.62
Whether the voir dire examination adequately tested juror qualifications?63
A district court has discretion under Federal Rule of Criminal Procedure 24(a) to conduct voir dire and to decide which submitted questions to ask. The examination need only be sufficient to test the qualifications and competency of prospective jurors.64
Yes. The District Court's voir dire was full and fair. It incorporated many of petitioners' requested questions in consolidated form and included a general inquiry into views on obscenity sufficient to satisfy due process. No clear abuse of discretion or prejudice to the petitioners was shown.65
The voir dire examination was adequate.66