                                                                               FILED
                            NOT FOR PUBLICATION                                MAR 25 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50036

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00732-GHK-1

  v.
                                                 MEMORANDUM*
IRA ISAACS, DBA LA Media, DBA
Stolen Car Films,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                       Argued and Submitted March 5, 2014
                              Pasadena, California

Before: FERNANDEZ, GRABER, and MURGUIA, Circuit Judges.

       Ira Isaacs appeals from the final judgment of the district court following a

jury trial. Isaacs was convicted on one count of engaging in the business of

producing and selling obscene matter, 18 U.S.C. § 1466(a), one count of

transportation of obscene matter for sale or distribution, 18 U.S.C. § 1465, one


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
count of transportation of obscene matter, 18 U.S.C. § 1462(a), and two counts of

mailing obscene matter, 18 U.S.C. § 1461. We affirm.

      In determining whether a work is obscene, a jury must consider “whether

‘the average person, applying contemporary community standards’ would find that

the work, taken as a whole, appeals to the prurient interest.” Miller v. California,

413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972) (per

curiam)). Prior to closing argument, the district court adopted the parties’

proposed jury instruction defining an “appeal to ‘prurient’ interest” in part as “an

appeal to a morbid, degrading, and unhealthy interest in sex.” In response to a

question posed by the jury, the district court observed that the instruction was

erroneous because it listed the adjectives “morbid,” “degrading,” and “unhealthy”

conjunctively rather than disjunctively. See Polykoff v. Collins, 816 F.2d 1326,

1336-37 (9th Cir. 1987) (upholding against an overbreadth challenge an instruction

to the jury under an Arizona obscenity statute that incorporated the federal

definition of “prurient interest” and holding that the jury should consider the terms

“unhealthy,” “wholesome,” “morbid,” “degrading,” and “shameful” “in the

alternate” and did not need to conclude that all applied (citing State v. Bartanen,

591 P.2d 546, 550 (Ariz. 1979))). Accordingly, the district court revised its

instruction to read “morbid, degrading, or unhealthy.”


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      On appeal, Isaacs argues that the alteration of the jury instruction

undermined the credibility of his lawyer, because his lawyer had referred to the

original instruction during closing argument. “Under the law of this circuit, the

necessity, extent and character of additional instructions are matters within the

sound discretion of the trial court.” United States v. McIver, 186 F.3d 1119, 1130

(9th Cir. 1999) (alteration and internal quotation marks omitted), overruled on

other grounds as recognized by United States v. Pineda-Moreno, 688 F.3d 1087,

1091 (9th Cir. 2012). Here, defense counsel himself used both conjunctive and

disjunctive formulations in referring to the instruction during his argument, so it is

unclear how the revision might have implied to the jury that Isaacs misled it as to

the applicable law. Further, both before the district court and on appeal, Isaacs has

argued only that the district court should have affirmed to the jury that the

erroneous instruction was correct; however, this proposed remedy disregards the

district court’s “obligation, when a jury requests clarification on an issue, to ‘clear

away the confusion with concrete accuracy.’” Id. at 1130 (some internal quotation

marks omitted) (quoting United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.

1979) (per curiam)). The district court did not abuse its discretion in correcting its

statement of the law to the jury.




                                           3
      Isaacs also argues that the district court erred in sustaining objections by the

government during his closing argument, which were made on the ground that

Isaacs was referring to facts not in evidence. “[A] district court’s limitation on a

closing argument is reviewed for an abuse of discretion.” United States v.

Lazarenko, 564 F.3d 1026, 1043 (9th Cir. 2009). Many of these objections were

made in response to Isaacs’ references to matters of popular knowledge. Even so,

“[t]he trial court did not abuse its discretion in requiring counsel to confine his

remarks to the record.” United States v. Spillone, 879 F.2d 514, 518 (9th Cir.

1989).

      Isaacs further challenges the district court’s exclusion of his proposed

opinion testimony. We review for abuse of discretion the district court’s

determinations as to both expert and lay opinion testimony. United States v.

Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010); Nationwide Transp. Fin. v.

Cass Info. Sys., Inc., 523 F.3d 1051, 1057-58 (9th Cir. 2008). The district court

did not abuse its discretion in excluding Isaacs’ proposed expert testimony about

artistic value, because its “application of the expert-testimony standard was logical,

plausible, and supported by inferences that may be drawn from the record.”

Redlightning, 624 F.3d at 1111 (citing Fed. R. Evid. 702; Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993)). Isaacs is likewise unable to show that the


                                           4
district court abused its discretion by limiting his lay testimony where, as here, he

makes no showing that the excluded testimony would have been “helpful . . . to

determining” whether the works were obscene. See Fed. R. Evid. 701.

      Finally, Isaacs argues that the district court should not have permitted an FBI

agent to sit with a computer at government counsel’s table and perform searches of

publicly available information during voir dire. Isaacs concedes that his claim has

no basis in existing law, and we see no reason to conclude that the district court’s

actions during voir dire constituted an abuse of discretion. See United States v.

Steele, 298 F.3d 906, 910 (9th Cir. 2002).

      The final judgment of the district court is AFFIRMED.




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