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43 Mailing Obscene Material 18 USC § 1461 Title 18, United States Code, Section 1461, makes it a Federal crime or offense for anyone to use the United States mails to transmit obscene materials. The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:First: That the Defendant knowingly used the mails for the conveyance or delivery of certain articles, as charged;Second: That the Defendant knew at the time of such mailing the general nature of the content of the matter so mailed; andThird: That the matter so mailed was " obscene" as hereafter defined.One of the specific facts that the Government must prove is that theDefendant knew the general nature of the contents of the articles thatwere transported in the mails. The Government does not have to prove that the Defendant knew that such articles were legally obscene, only that the Defendant knew what they were. Therefore, if you find beyond a reasonable doubt that the Defendant transmitted the articles in question through the mails and that the Defendant knew the general nature of the articles - - that the Defendant knew what they actually were - - and if you then find beyond a reasonabledoubt that the articles were in fact " obscene" within the meaning of these instruct ions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law. Freedom of expression is fundamental to our system, and has contributed much to the development and well being of our free society. In the exercise of the constitutional right to free expression that all of us enjoy, sex may be port rayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because itcontains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is " obscene." For something to be " obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1 ) that the work appeals predominantly to " prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.An appeal to " prurient" interest is an appeal to a morbid, degradingand unhealthy interest in sex, as distinguished from a mere candid interest in sex. The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part , and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, [or the prurient interest of members of a deviant sexual group, as the case might be]. The " predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the " average person of the community as a whole" is a judgment that must be made in the light of contemporarystandards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material. [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interestof a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]An appeal to the prurient interest, as stated before, is an appeal to amorbid, degrading and unhealthy interest in sex as distinguished from a candid interest in sex. The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or pervert ed, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, if you believe them to be stricter than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.Contemporary community standards, as stated before, are thoseestablished by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept . It is a matter of common knowledge that customs change and that the community as a whole may from time to time find accept able that which was formerly unacceptable. The third test t o be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it port rays explicit sexual conduct, and it is for you to say whether the material in this case has such value. All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene w it hin the meaning of the law. ANNOTATIONS AND COMMENTS 18 USC § 1461 provides: Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . . Is declared to be nonmalleable matter and shall not be conveyed in the mails [and] . . .Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared . . . to be nonmalleable [shall be guilty of an offense against the United States].Maximum Penalty: Five (5) years imprisonment and applicable fine. A Defendant charged under 18 USC § 1461 has the requisite scienter if the Defendant knows of the nature and character of the allegedly obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). See Unit ed States v. Johnson, 855 F.2d 299, 306 (6th Cir. 1988); United States v. Fri edman, 528 F.2d 784 (10th Cir. 1976); United States v. Grassi, 602 F.2d 1192, 1195 n.3 (5th Cir. 1979); United States v. Groner, 494 F.2d 499 (5th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 331, 42 L.Ed.2d 285 (1975). It is not necessary to prove that the Defendant knew the material was obscene under legal standards. United States v. Schmelt zer, 20 F.3d 610, 612 (5th Cir. 1994); United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct . 1336, 43 L.Ed.2d 430 (1975). See Devitt & Blackmar, Federal Jury Practice and Instructions § 40A.05; § 40A.17. The only questions as to intent are whether the Defendant knowingly sent the material through the mail, and whether the Defendant was aware of the nature of the material sent through the mail. See United States v. Shumway, 911 F.2d 1528 (11th Cir. 1 99 0); Spill man v. United States, 413 F.2d 527 (9th Cir. 1969). A specific intent to mail something known to be obscene is not required. Hamling v . United States, 4 18 U.S. 8 7, 94 S.Ct. 2 88 7, 41 L.Ed.2d 5 90 (19 74 ).