Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Criminal Action No. 93-cr-00097).
Present: Becker and Hutchinson, Circuit Judges, and Padova, District Judge*fn*
HUTCHINSON, Circuit Judge.
Appellant, Michael Schein ("Schein"), appeals a final judgment of conviction on obscenity charges entered against him by the United States District Court for the Middle District of
Pennsylvania. The government cross-appeals from the district court's decision to depart downward from the Sentencing Guidelines and place Schein on probation. We will affirm Schein's conviction but vacate the sentence of probation because the district court did not give its reasons for departing downward. Accordingly, we will remand the case to the district court to give it an opportunity to make findings in support of its downward departure or, in the absence of evidence to support such findings, to resentence Schein within the applicable guideline range.
Schein was indicted by a federal grand jury on eight counts, five for mailing obscene materials (Counts One through Five), one for making false declarations (Count Six), and two for criminal forfeiture (Counts Seven and Eight). After Schein waived his right to a jury, the district court held a bench trial and found him guilty of Counts One through Five, not guilty of Count Six and disposed of Counts Seven and Eight charging forfeiture on the basis of a stipulation.
At trial the government presented five tapes it had ordered from Schein's mail order catalog. The tapes contain graphic depictions of urination, masturbation, and oral and anal sex among homosexual males. The district court found these tapes were obscene and thus determined appellant was guilty of mailing obscene material in violation of 18 U.S.C.A. § 1461 (West 1984). Departing downward, the court sentenced Schein to twelve months probation.
In his appeal Schein argues the district court wrongly concluded his videotapes were obscene.*fn1 On cross-appeal the government argues the court's downward departure from the applicable Sentencing Guidelines range of eighteen to twenty-four months, to a sentence of twelve months probation, is not in accord with law.
We first consider Schein's appeal from his conviction. Obscene material is not protected by the First Amendment. Whether material is obscene is Judged under the three part Miller test. See Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). This test requires us to determine:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Id. at 24 (citation omitted). In deciding whether the evidence was sufficient to find Schein guilty of mailing obscene material, we must consider whether there is substantial evidence, viewing the record in a light most favorable to the government, to support the factfinder's verdict of guilty. Government of the Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir. 1984).
Schein claims the tapes are not obscene because photographs of "urolagnic" pornography by Robert Mapplethorpe were shown at an exhibit funded by the government's National Endowment of the Arts. We reject this argument. Schein is not Mapplethorpe and it is plain that Schein's tapes lack serious artistic value, whatever artistic merit Mapplethorpe's work may have. Moreover, mere availability of similar material is not a defense to obscenity. Hamling v. United States, 418 U.S. 87, 126, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974) ("'Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activity.'") (quoting, United States v. Manarite, 448 F.2d 583, 593 (2d Cir. 1971)).
Schein next claims his videotapes come within part (c) of the Miller test excluding certain expressive materials from the class of those that are obscene because Schein's tapes promote sexual safety and therefore serve an important social interest. We agree with Schein that materials which promote public health are not obscene just because they ...