MERVIN MOUNCE, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that the standard for determining obscenity is the judgment of the average person in the community, and constitutional issues raised were foreclosed by Supreme Court precedent.
The case involves the determination of whether certain publications are obscene under federal statute. The trial court applied a standard based on the…
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PER CURIAM.
We are in agreement with Judge Driver’s opinion that the standard to be applied in determining whether or not publications are obscene within the meaning of § 1305(a) of Title 19 U.S. C.A. “is the judgment of the average, normal, reasonable, prudent person of the community in which the publication is circulated. If, at the time of such circulation, considered as a whole it offends the sense of propriety, morality, and decency of such average person, it is within the bar of the statute. Otherwise it is not. Guided by these general principles * * * the trier of facts must draw the line as best he can between art and pornography — between what is permissible and what is objectionable and obscene.”
We find no error in the trial court’s findings of fact, based upon its application of this standard to the facts established by the record in this case. We adopt Judge Driver’s opinion as the opinion of the court. United States v. 4200 Copies International Journal, D.C., 134 F.Supp. 490, 493.
The constitutional questions which appellant has raised in this court and which were not discussed in the opinion of the district court have been foreclosed by the decision of the Supreme Court in Roth v. United States, 77 S.Ct. 1304.
The judgment is affirmed.
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Ginzburg v. United States, 383 U.S. 463 (U.S. 1966)
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Kahm v. United States, 300 F.2d 78 (5th Cir. 1962)
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United States v. Darnell, 316 F.2d 813 (2d Cir. 1963)
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- Roth v. United States, 354 U.S. 476 (U.S. 1957)