4.18.1470 Transfer of Obscene Materials to Minors, 18 U.S.C. § 1470 See Statute

[Defendant] is charged with knowingly using [the mail] [a facility or means of interstate or foreign commerce] to transfer obscene matter to someone under age sixteen[, or attempting to do so]. It is against federal law knowingly to transfer obscene matter to a person under age sixteen while knowing he/she is under age sixteen, by using [the mail] [a facility or means of interstate or foreign commerce] [, or to attempt to do so]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] knowingly transferred the material as charged to the person listed;

Second, that [defendant] used [the mail] [a facility or means of interstate or foreign commerce] to do so;

Third, that [defendant] knew at the time the general contents, character and nature of the material;

Fourth, that the material was obscene; and

Fifth, that at the time, the recipient was not yet sixteen years old and [defendant] knew that he/she was not yet sixteen years old.

“Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident.

“Interstate commerce” includes commerce between one state, territory, possession, or the District of Columbia and another state, territory, possession and the District of Columbia.

“Foreign commerce” includes commerce with a foreign country.

Material is “obscene” when:

(1) the average person, applying contemporary community standards, would find that the material, taken as a whole, is in some way erotic, and appeals to a degrading, unhealthy or morbid interest in sex as distinguished from normal, healthy sexual desires;

(2) the average person, applying contemporary community standards, would find that the material depicts or describes ultimate sexual acts, excretory functions, masturbation or lewd exhibition of the genitals in a patently offensive way; and

(3) a reasonable person would find that the material, taken as a whole, lacks serious literary, artistic, political or scientific value.

All three characteristics of this test must be present in the particular listed material for it to be found to be obscene. It is not necessary for the government to prove that [defendant] knew or believed the material to be legally obscene.

[Use Attempt instruction, 4.18.00, as appropriate.]

Comment(s)

(1) We have modeled the obscenity definition on the short, plain language instruction of the Federal Judicial Center pattern charge. See, e.g., Federal Judicial Center, Pattern Criminal Jury Instructions Nos. 88-89 (1987). It comes almost directly from Miller v. California, 413 U.S. 15, 24 (1973). Many other Circuits use much lengthier charges, see, e.g., Eleventh Circuit Pattern Jury Instructions (criminal cases) Nos. 43-45 (1997), but they do not seem to make this difficult question easier. The short charge focuses the jury on the important issues.

(2) “[O]bscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant.” Smith v. United States, 431 U.S. 291, 304 (1977). It is unnecessary to specify what community. Jenkins v. Georgia, 418 U.S. 153, 157 (1974). But the Supreme Court has taken pains “to make clear that children are not to be included for these purposes as part of the ‘community.’” Pinkus v. United States, 436 U.S. 293, 297 (1978) (conviction under 18 U.S.C. § 1461). It is not error to say that the community includes both sensitive and insensitive people. Id. at 298-301. While the community as a whole is generally the standard for judging obscenity, an exception has been recognized for material aimed at a clearly defined deviant sexual group. Id. at 302 (“Nothing prevents a court from giving an instruction on prurient appeal to deviant sexual groups as part of an instruction pertaining to appeal to the average person where the evidence . . . would support such a charge.”). The knowledge characterization comes from Hamling v. United States, 418 U.S. 87, 123-24 (1974). “A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage 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 the law.” Hamling v. United States, 418 U.S. 87, 104 (1974). The test is not one of national standards. Id. at 105-08.

(3) This instruction does not use the term “prurient,” but instead the definition of “prurient” in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985) (“[P]rurience may be constitutionally defined for the purposes of identifying obscenity as that which appeals to a shameful or morbid interest in sex.”). There seems to be no reason to use the actual term which may be more difficult for a jury.

(4) The “normal, healthy sexual desires” distinction comes from Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985). The erotic requirement comes from cases such as Ashcroft v. ACLU, 535 U.S. 564, 579 (2002) (plurality) (challenge to the Child Online Protection Act) (“Material appeals to the prurient interest, for instance, only if it is in some sense erotic.”).

(5) The list of images that are covered (ultimate sexual acts, excretory functions, masturbation or lewd exhibition of the genitals) comes from Miller v. California, 413 U.S. 15, 25 (1973). Nudity alone is not enough. Jenkins v. Georgia, 418 U.S. 153, 161 (1974).

(6) It is clear that on the issue of literary, artistic, political or scientific value, the standard is a reasonable person, not the average person of the other two factors. Pope v. Illinois, 481 U.S. 497, 500-01 & n.3 (1987).